GIFT  TO  THE  LIBRARY 

CIVIL  ENGINEERING  DEPARTMENT 

UNIVERSITY  OF  CALIFORNIA 

BY 

PROFESSOR  FRANK  SOULE 
1912 


m 


WORKS  OF   JOHN   C.  WAIT 

PUBLISHED     BY 

JOHN   WILEY   &   SONS. 


Engineering  and  Architectural  Jurisprudence. 

.  A  Presentation  of  the  Law  of  Construction  for 
Engineers,  Architects,  Contractors,  Builders,  Pub- 
lic Officers,  and  Attorneys  at  Law.  8vo,  985 
pages,  cloth,  $6.00  ;  sheep,  $6.50. 

The  Law  of  Operations  Preliminary  to  Construc- 
tion in  Engineering  and  Architecture. 

Rights  in  Real  Property.  Boundaries,  Easements, 
and  Franchises.  For  Engineers,  Architects,  Con- 
tractors, Builders,  Public  Officers,  and  Attorneys 
at  Law.  8vo,  712  pages,  cloth,  $5.00  ;  sheep,  $5.50. 

The  Law  of  Contracts. 

A  Text-book  for  Technical  Schools  of  Engineer- 
ing and  Architecture.  8vo,  346  pages,  cloth,  $3.00. 


THE  LAW  OF  CONTRACTS. 


A  TEXT-BOOK  FOE  TECHNICAL, 


OP 


ENGINEERING    AND    ARCHITECTURE 


BY 

JOHN  CASSAN  WAIT,   M.C.E.,   LL.B., 

(M.C.E.  CORNELL;  LL.B.  HARVARD,) 

Attorney  and  Counsellor  at  Law  and  Consulting  Engineer ;  Member  of  the  American  Society 
of  Civil  Engineers ;   Sometime  Assistant  Professor  of  Engineering,  Harvard 

University ;  Assistant  Corporation  Counsel,  The  City  of  New  York. 

Author1  of  Engineering  and  Architectural  Jurisprudence  ;  The  Law  of  Operations 

Preliminary  to  Construction  in  Engineering  and  Architecture; 

1895-Edition,  The  Car-Builders'  Dictionary;  etc. 


FIRST  EDITION. 
FIRST  THOUSAND. 


NEW  YORK: 

JOHN  WILEY   &   SONS. 

LONDON:    CHAPMAN  &  HALL,  LIMITED. 

1901. 


Engineering 
Library 


Engineering 
Library 


Copyright,  1901, 

BY 

JOHN  CASSAN  WAIT. 


ROBERT  DRUMMOND,   PRINTER,   NEW  YORK. 


PREFACE. 


ALL  business  is  conducted  through  the  medium  of  contracts,  and  whether 
it  be  the  ordinary  affairs  of  domestic  life  by  means  of  simple  parol  agreements, 
or  the  erection  and  completion  of  great  public  works  by  carefully  prepared 
specialties,  the  same  law  applies  to,  and  the  same  principles  govern,  both. 
Without  the  medium  of  contracts  the  world's  business  would  be  at  a  stand- 
still, and  no  man  can  do  business  successfully  without  some  knowledge  of 
the  law  governing  contracts. 

Every  day,  as  competition  increases,  this  is  becoming  more  apparent,  and 
every  day  it  is  brought  more  forcibly  to  the  attention  of  the  schools,  both 
general  and  technical,  until  now  many  of  the  universities  and  technical 
schools  offer  to  their  students  courses  in  general  business  law,  consisting 
chiefly  of  the  law  of  contracts. 

This  book  has  been  published  in  response  to  a  request  from  several  of  the 
larger  and  more  progressive  industrial  schools  of  the  continent  for  a  text-book 
on  the  Law  of  Contracts.  The  necessity  of  such  a  book  in  the  industrial 
professions  arises  from  the  universal  practice  of  engineers  and  architects  to 
prepare  the  contracts  and  specifications  for  public  and  private  works.  The 
preparation  of  the  specifications  is  the  proper  and  legitimate  undertaking  of 
the  engineer  or  architect,  and  the  contract,  which  embodies  and  makes 
operative  the  specifications  and  plans,  must  be  drawn  with  reference  to  them, 
to  give  to  them  the  force  and  effect  required.  If  the  specifications  be  drawn 
by  the  engineer  or  architect,  and  the  contract  be  prepared  by  an  attorney, 
conflict  often  results  between  the  two  instruments,  creating  ambiguity  and 
litigation.  Between  the  two  evils,  the  lack  of  law  and  thq  want  of  technical 
knowledge,  the  former  is  regarded  as  the  lesser,  and  the  preparation  of  both 
the  specifications  and  the  contract  has  been,  and  is,  intrusted  to  engineers 
and  architects. 

A  study  of  the  statistics  of  public  and  private  work  shows  that  more  than 
one  half  the  contracts  are  prepared  by  engineers  or  architects  without  consul- 
tation with  the  legal  profession.  This  is  unfortunate,  not  only  for  the  parties 
having  the  work  done,  but  for  the  contractor  undertaking  it.  A  contract 
prepared  without  regard  to  legal  principles  is  pretty  certain  to  lead  to  litiga- 
tion, either  from  misunderstanding  or  misinformation  as  to  the  legal  rights 
and  liabilities  of  the  parties,  or  from  a  failure  to  create  a  valid  and  binding 


789592 


iv  PREFA  CE. 

contract  as  the  parties  intended.  As  this  practice  is  the  result  of  the  condi- 
tions which  prevail  in  most  instances  where  public  and  private  work  is  under- 
taken and  prosecuted,  it  has  not  been  and  will  not  be  corrected  by  advice 
to  the  parties,  or  to  their  engineers,  that  they  should  not  perform  functions 
which  are  the  proper  work  of  a  lawyer.  It  is  hoped  to  remedy  the  evil 
consequences  of  such  a  practice,  in  a  measure  at  least,  by  placing  before 
engineering  and  architectural  students  a  treatise  upon  the  law  of  contracts, 
and  particularly  of  those  contracts  pertaining  to  construction  work,  and  the 
employment  of  engineers  and  architects. 

The  chapters  here  presented  are  the  substance  of  a  course  of  lectures 
delivered  by  the  author  some  years  ago  before  the  technical  classes  in  engineer- 
ing and  architecture  at  Harvard  University,  and  which  were  received  with  so 
much  favor  as  to  encourage  the  author  to  publish  them.  This  was  first  done 
in  his  book  on  "  Engineering  and  Architectural  Jurisprudence,"  wherein  they 
were  embodied  together  with  other  material  subsequently  collected  and  bearing 
upon  the  same  subject.  That  work  is  more  comprehensive  than  is  required  for 
a  text-book.  It  would  require  more  time  to  cover  it  than  the  average  tech- 
nical school  can  spare  from  the  very  full  course  of  study  prescribed,  and  so 
this  abridged  edition  has  been  issued. 

The  present  volume  contains  the  essential  principles  upon  which  valid 
contracts  depend  and  the  main  features  of  the  statutes  which  modify  and  limit 
the  obligations  of  contracts,  and  also,  in  a  fairly  complete  and  concise  form, 
the  law  of  bidding  and  letting. 

The  part  devoted  to  engineers'  and  architects'  employment  should  be  of 
much  interest  and  practical  benefit  to  students  who  contemplate  a  professional 
life,  or  a  business  career  in  which  they  may  become  employers.  The  chapters 
therein  contained  will  cultivate  in  young  men  a  realization  of  the  obligations 
assumed  and  of  the  duties  imposed  by  employment,  whether  as  mere 
employee,  or  as  professional  man,  or  as  public  officer. 

A  study  of  the  chapter  on  the  employee's  rights  in  his  designs  and  inven- 
tions will  safeguard  the  productions  of  their  creative  genius,  and  will  save 
them  chagrin  from  having  heedlessly  or  ignorantly  bartered  away  the  fruits  of 
their  labor  and  technical  training.  If  in  after-years  they  be  engaged  as  expert 
witnesses,  they  will  find  the  chapter  on  the  employment  of  expert  witnesses  of 
much  value.  Every  young  man  in  the  technical  professions  is  quite  certain 
to  be  called,  sooner  or  later,  to  act  as  an  expert  witness,  and  he  should  not 
accept  such  a  call  without  some  advice  or  reading  to  assist  him  in  the  presen- 
tation of  the  case  to  the  court  and  the  jury,  and  to  guide  him  in  his  conduct 
before  them. 

The  book  does  not  perhaps  present  anything  new  so  far  as  it  describes  or 
explains  the  elementary  principles  upon  which  the  law  of  contracts  is  based, 
but  the  author  claims  for  it  so  much  novelty  as  is  contained  in  a  book  made 
of  new  material  and  of  instances  peculiar  to  the  engineering  and  architectural 


PREFA  CE.  V 

professions.  Almost  all  of  the  illustrations  used  and  the  cases  cited  as 
authorities  are  those  that  have  arisen  in  engineering  and  architectural  work, 
and  which  have  had  in  them  serious  lessons  either  for  the  owner  or  for  the 
contractor  or  builder  concerned  in  them.  These  instances  add  to  the 
subject-matter  and  give  to  the  student  much  information  belonging  strictly  to- 
engineering  and  architecture  which  cannot  be  obtained  from  any  other  source. 

The  favor  with  which  the  author's  "  Engineering  and  Architectural  Juris- 
prudence ' '  has  been  received  relieves  him  from  anxiety  for  the  present  publi- 
cation; except  that  students  who  purchase  this  text-book  edition  will,  when 
they  enter  professional  practice,  find  it  incomplete.  If  the  difference  in  the 
cost  of  the  two  books  be  not  a  matter  of  much  importance  to  the  student,  he 
is  recommended  to  purchase  in  the  first  instance  the  complete  work  on 
"  Engineering  and  Architectural  Jurisprudence." 

From  his  own  experience  the  author  is  enabled  to  speak  thus  confidently 
of  the  value  and  interest  that  the  book  should  have  for  the  student  of  engineer- 
ing and  architecture.  At  the  beginning  of  his  professional  career  as  an 
engineer  he  felt  the  lack  of  the  information  it  contains  and  came  to  know  full 
well  the  tribulations  and  trials  which  young  men  will  meet.  As  a  teacher  and 
lecturer  he  knows  the  interest  which  the  subject  has  for  students;  and  as  an 
officer  of  a  great  city  (having  in  hand  the  contracts  for  its  public  improve- 
ments) he  realizes  the  value  to  engineers  and  architects  of  some  knowledge 
of  Contract  Law  as  illustrated  in  the  contract  forms  and  specifications  sub- 
mitted to  him  by  technical  men,  some  with,  and  others  without,  such 
knowledge. 

To  the  student  the  author  would  say  a  word  in  regard  to  the  study  of 
contract  law,  which  perhaps  will  apply  to  the  study  of  any  subject,  viz.,  that 
the  closest  attention  should  be  given  to  the  fundamental  principles  or  essen- 
tial elements.  It  should  not  only  be  the  first  step  in  the  drafting  and 
preparation  of  the  contract,  but  it  should  be  the  last  consideration  before  the 
final  copy  is  executed.  A  final  revision  of  the  whole  instrument  prepared 
should  always  be  made  to  see  if  it  contain  the  elements  of  a  valid  and  binding 
contract,  and  that  it  is  within  the  statutes  limiting  and  modifying  the  law  of 
contracts.  It  is  surprising  what  a  number  of  contracts,  prepared  and  passed 
even  by  lawyers,  are  declared  invalid  and  of  no  binding  effect  because  they 
lack  one  or  more  of  the  four  essential  elements  requisite  to  the  validity  of  a 
binding  contract.  Do  not,  above  all  things,  be  hurried  in  the  preparation 
and  execution  of  a  contract  and  the  specifications  of  a  work. 

The  book  is  designed  to  cultivate  in  young  members  of  the  industrial 
professions  a  proper  understanding  and  appreciation  of  business  and  business- 
relations.  Graduates  of  technical  schools  often  obtain  a  contracted  view  of 
their  professional  duties  and  labors.  There  ft  danger  of  narrowing  their  work 
to  the  ministerial  duties  of  the  drafting-room,  the  shop,  or  the  field.  Many 
men  technically  trained  or  educated  remain  in  the  shop  or  the  drafting-room, 


VI  PREFACE. 

while  less  skillful  men,  who  have  acquired  a  business  experience,  become 
superintendents,  managers,  and  presidents  of  the  companies  employing  them, 
and  frequently  they  are  more  justly  entitled  to  promotion  to  such  offices.  A 
technical  education  prepares  a  man  for  a  higher  sphere  than  that  of  machinist, 
•designer,  or  surveyor.  Supplemented  with  a  good  business  training,  it  fits  a 
man  for  the  direction  and  superintendence,  of  large  works.  Technical 
students  should  enter  a  broader  field  of  action,  by  acquiring  a  better  apprecia- 
tion of  business  relations  and  business  principles,  and  a  due  sense  of  their 
duties,  liabilities,  and  responsibilities. 

There  is  no  business  for  which  the  training  of  an  engineer  better  fits  him 
or  that  is  likely  to  prove  more  profitable  and  satisfactory  than  that  of  a 
contractor  and  builder.  A  young  man  who  starts  out  in  his  professional 
career  with  a  fair  knowledge  of  the  law  of  contracts  is  certain  to  show  an 
interest  in  business  methods  and  principles.  If  he  will  cultivate  such  an 
interest  and  make  observations  and  memoranda  of  the  cost  of  labor,  materials, 
and  equipment,  he  will  soon  have  data  which,  together  with  those  qualifica- 
tions previously  acquired  by  every  engineer,  viz. ,  the  capacity  to  estimate, 
design,  and  erect  works,  will  give  him  all  that  is  required  to  undertake  con- 
struction work  and  to  become  a  successful  contractor. 

It  is  the  author's  hope  that  by  the  publication  of  this  work  he  has  con- 
tributed something  that  shall  cultivate  in  technical  students  an  interest  in  such 
business  relations  as  are  created  and  fixed  by  contracts.  If  that  be  accom- 
plished, he  will  feel  that  he  has  conferred  a  personal  benefit  upon  the  student 
and  a  universal  and  lasting  service  to  the  technical  professions. 

220  BROADWAY,  CITY  OF  NEW  YORK. 
January  30,  1901. 


CONTENTS. 


PART   I. 

LAW  OF  CONTRACTS  IN  GENERAL. 
CHAPTER  I. 

ESSENTIAL  ELEMENTS   OF  A  CONTRACT.      LEGAL  AND   ILLEGAL  CONTRACTS. 

THE    PARTIES   TO    A    CONTRACT. 
SECTION  •  PAGE 

1.  Introduction , t 1 

2.  Essen  I  ial  Elements  of  a  Contract , 1 

3.  The  Introduction  to  a  Contract , 2 

4.  Designation  of  the  Parties 3 

5.  Parties  to  the  Contract 3 

6.  Only  Parties  to  Contract  are  Bound 4 

7.  Legal  Representatives  of  the  Parties 4 

8.  The  Representatives  after  Death,  or  Changes  Effected  by  Law 5 

9.  Executor  or  Administrator  Takes  Benefits  and  Burdens  of  Contract 5 

10.  Contracts  for  Personal  Skill  of  Contractor 6 

11.  Executor  Named  in  Contract 6 

12.  Executor's  Liability  on  Contracts  and  for  Torts  of  Party 7 

13    Assignee  of  Contractor  or  Owner 8 

14.  What  Contracts  and  Claims  are  Assignable 9 

15.  Contracts  Awarded  to  Lowest  Bidder  may  be  Assigned 9 

16    What  Interest  does  an  Assignee  Take 10 

17.  Third  Parties,  Strangers,  and  Beneficiaries 11 

18.  Third  Party— Sureties    12 

19.  Third  Parties,  Sureties  are  Not  Liable  to  Them 13 

20.  Surety  Released  by  Unauthorized  Changes  in  the  Contract 13 

21.  Changes  which  will  Not  Release  the  Surety 16 

22.  Surety  Discharged  by  Other  Causes 17 

Persons  as  Parties. —  Who  May  Contract. 

23.  Disabilities  to  which  Persons  are  Subject I 18 

24.  Infants 18 

25.  Imbeciles   Inebriates,  and  Lunatics 19 

26.  Married  Women 21 

27-   Other  Conditions  Affecting  a  Person's  Capacity  to  Contract. .« 22 

28.  Either  Party  under  Duress 23 

29.  Agency — Parties  Acting  by  or  through  their  Agents 23 

30.  Principal  should  be  Made  the  Party— If  Agent  Assumes  the  Obligation  He  will 

be  Liable  24 

31.  Proof  of  Aeency 25 

32.  Names  of  Parties  in  Body  of  Contract  should  Correspond  with  Signatures £6 

33.  Agents  should  be  Duly  Authorized  to  Contract 27 

vii 


Viii  CONTENTS. 

SECTION  PAGB 

34.  Unauthorized  Acts  of  Agent  may  be  Ratified  or  Adopted 27 

35.  No  Claims  or  Obligations  are  Created  by  Contract  of  Public  Officer  or  Agent 

who  Acts  without  Authority     ....  27 

36.  Public  Agents  Not  L  able  for  Blunders 28 

37.  Agent's  Authority  must  Come  from  His  Principal 28 

38.  Authority  cannot  be  Inferred  from  Business  or  Family  Relations 29 

39.  Boards,  Committees,  and  Councils  in  Their  Representative  Capacity   30 

40.  Public  Officers  are  Presumed  to  Do  Their  Duty 31 

41.  Means  of  Obtaining  Information  32 

42.  An  Agent  or  Fiduciary  can  Have  No  Interest  in  the  Contract 33 

Artificial  Parties.     Corporate  Bodies. 

43.  Charter  and  Statute  Limitations 34 

44.  Other  Restrictions  to  which   Corporate  Bodies    are   Subject — Cost,   must  Be 

within  the  Appropriation  or  Limit  of  Indebtedness 36 

45.  Appropriation  must  Not  be  Exceeded 37 

46.  The  Legislature  or  Congress  may  Ratify  the  Contract 38 

47.  Cases  where  Appropriation  has  been  Exceeded 39 

48.  Unincorporated  Organizations  as  Parties 40 

49.  Subscribers  to  a  Project 40 

50.  Second  Party  Not  Named,  but  Determined  by  His  Own  Act  42 

61.  Charter  and  Statute  Requirements  must  be  Strictly  Carried  Out  43 

52.  No  Recovery  can  be  Had  for  Work  and  Materials  Furnished  for  Public  Work 

Contrary  to  Law 44 

53.  The  Law  will  Not  Imply  a  Contract  which  the  Law  Forbids 44 

54.  Irregularities  Need  Not  be  Caused  by  Contractor 46 

55.  Precautions   to   be   Taken   by  Contractors  with  Regard  to  Parties  and  Their 

Powers 48 

56.  Source  of  Power 48 

57.  Residence  of  Parties — Place  where  Contract  is  Executed 48 

58.  Laws  Governing  Contract  may  be  Determined  by  the   Place  where  Contract 

was  Made  or  by  the  Residence  of  the  Parties 48 

59.  Time  when  Contract  was  Made  or  Entered  Into  — Day  or  Date 51 

CHAPTER  II. 

LAW   OF   CONTRACTS.      ESSENTIAL   ELEMENTS   OF    A   CONTRACT.      THE   CONSIDERATION. 

The  Thing  for  which  the  Act  Is  Done.     Contractor  Consents  to  Do  some  Lawful  Act  : 

for  What? 

60.  The  Consideration 54 

61 .  As  Regards  Consideration 54 

62.  Consideration  in  Case  of  Subscriptions 55 

63.  Adequacy  of  Consideration 56 

64.  The   Consideration  of  a   Contract  Must  Be   Something  More   Than   a   Moral 

Obligation 56 

65.  The  Consideration  Must  Not  be  Wanting 57 

66.  The  Doing  of  a  Thins  by  One  Party  Which  He  is  Already  Bound  to  the  Other 

Party  to  Do  is  Not  a  Consideration  for  a  New  Promise  or  a  Contract 57 

67.  The  Consideration  must  Be  Present  59 

68.  From  Whom  Consideration  must  Come 61 

69.  Changes  or  New  Term*  in  a  Contract  62 

70.  Consideration  Good  in  Part  63 

CHAPTER  III. 

LAW    OF   CONTRACTS.      ESSENTIAL   ELEMENTS   OF   A   CONTRACT. 

The  Subject-matter.     The  Act  to  be  Performed  or  Thing  to  be  Erected,  Furnished, 

or  Supplied. 

71.  Relation  of  the  Subject-matter  and  the  Consideration 65 


CONTENTS.  ix 

As  Regards  the  Act  to  be  Done  or  Undertaken  or  the  Consideration  for  which  it  is 

Undertaken.  , 

SECTION  PAGE 

72.  There  must  Be  a  Lawful  Subject-matter — The  Promise  must  Be  to  Perform  a 

Lawful  Act 65. 

73    Contracts  the  Effect  of  Which  Is  to  Influence  Public  Officers. 66* 

74.  Contracts  for  the  Perversion  of  the  Courts 67 

75.  The  Undertaking  Must  Not  be  Contrary  to  Federal  or  State  Laws,  or  in  Dis- 

regard of  Police  Regulations  or  City  Ordinances 6& 

76.  The  Contract  must  Not  Be  to  Invade  Property  Rights,  to  Commit  or  to  Main- 

tain a  Nuisance,  to  Obstruct  a  Public  Way  or  Stream,  or  to  Commit  a  Tres- 
pass      68 

77.  The  Act  must  Not  Be  to  Commit  a  Crime  or  a  Misdemeanor,  or  to  Injure  Others 

in  the  Enjoyment  of  Their  Rights 70 

78.  The  Agreement  must  Not  Be  for  the  Sale  or  Supply  of   Adulterated  Goods,  or 

of  Intoxicating  Liquors  in  Violation  of  Excise  Laws  Prohibiting  Traffic  in 
Them 7& 

79.  The  Act  must  Not  Require  Either  Party  to  Violate  the  Sabbath  Laws,  or  to 

Ignore  the  Laws  and  Regulations  of  Society 70 

80.  The  Act  must  Not  Be   to  Effect  Something  in  Contravention   of   the  Law  or 

Public  Policy,  or  in  Violation  of  Judicial  Morals,  to  Do  what  the  Law  For- 
bids, or  to  Neglect  what  the  Law  Requires 70- 

81.  The  Undertaking  must  Not  Have  for  its  Object  the  Creation  of  a  Monopoly 71 

82.  Contracts  Not  to  Bid  or  Compete 7£ 

83.  Contracts  that  Promote  Gambling 73. 

84.  The  Act  must  Not  be  Inconsistent  with  the  Duties  and  Obligations  of  a  Party 

Who  has  Undertaken  It 73- 

85.  A  Fiduciary  can  Have  No  Personal  Interest  in  His  Principal's  Contract 73. 

86.  A  Man  Cannot  by  Contract  Forfeit  Certain  Rights  and  Privileges  the  Protection 

of  Which  the  Law  Guarantees T. 74 

87.  Immoral  Contracts 7T 

CHAPTER  IV. 

LAW   OP  CONTRACTS.      ESSENTIAL  ELEMENTS  OF  A  CONTRACT.      MUTUAL  CONSENT   OR 

MUTUAL  ASSENT. 

88.  There  must  Be  Mutual  Understanding 79' 

89.  Mutual  Consent  must  be  Shown  by  Some  Overt  Act 7ft 

90.  There  should  Be  No  Misunderstanding 80 

91.  To  Avoid  a  Contract,  Mistake  or  Misunderstanding  must  be  Shown  Conclusively.  82 

92.  Manner  of  Coming  to  an  Understanding— Offer  and  Acceptance  Make  a  Con- 

tract      83 

93.  What  Is  an  Offer? 84 

94.  What  Constitutes  an  Acceptance? 85- 

95.  Contracts  Made  by  Mail  or  Telegraph 86 

96.  Acceptance  must,  Be  Unconditional  and  in  the  Same  Terms  as  the  Offer 87 

97.  What  Effects  a  Revocation  of  an  Offer 8a 

CHAPTER  V 

LAW   OF  CONTRACTS.      GENERAL   STATUTES   LIMITING   THE  LAW   OF  CONTRACTS. 

Statute  of  Frauds, 

98.  Proof  of  Terms  of  Contracts 91 

99.  Statute  of  Frauds 91 

100.  Statute  of  Frauds— Contracts  for  the  Sale  of  Goods,  Materials,  and  Merchan- 

dise.    92 

101.  Contract  for  Goods  to  be  Manufactured 92 

102.  What  is  a  Sufficient  Memorandum  of  a  Sale 93 

103.  Contracts  to  be  Performed  within  One  Year 94 

104.  Contracts  Executed  or  Completed  by  Contractor 95 

105.  Contracts  for  Employment  Not  to  be  Completed  within  a  Year 95 


X  CONTEXTS. 

•SECTION  PAGE 

106.  Contracts  for  an  Interest  in  Lauds 97 

107.  Special  Agreements  Relating  to  Lands 98 

108.  Contract  Implied  by  Law  to  Pay  for  Benefits  Conferred  when  there  has  Been 

Enrichment 98 

109.  Contracts  for  the  Creation,  Assignment,  and  Surrender  of  Estates  in  Land 99 

110.  Promises  to  Answer  for  the  Debts  of  Another 99 

111.  Application  of  the  Law  to  Construction  Work 100 

Statute  of  Limitations. 

112.  Objects  and  Reasons  for  the  Statute 102 

113.  Statute  Does  Not  Destroy  the  Contract  Obligation,  but  Affects  the  Remedy  or 

Means  of  Enforcing  It 102 

114.  Disabilities  that  May  Prevent  the   Operation   of   the   Statute— Personal  Dis- 

abilities   103 

115  The  Letter  of  the  Law  is  Applied  Strictly,  without  Regard  to  Hardship  or  Mis- 

fortune   104 

116  Statute  Does  Not  Operate  against  the  Government 104 

117.  Agreements  to  Waive  the  Protection  of  the  Statute 105 

118.  New  Promises  May  Interrupt  the  Running  of  Statute  and  Forfeit  Its  Protec 

tiou 105 

119.  Injury  Concealed  by  Fraud,  so  that  Right  of  Action  was  Not  Known 106 

120.  Bud  Work  Concealed  When  under  Inspection  and  Supervision  of  Engineer 107 

121.  Liability  of  Engineer  for  Misconduct  after  Statutory  Period  has  Elapsed 107 

Law  of  Contracts.     Proof  of  Terms  of  Collateral  Contract.     Parol  or   Verbal 

Agreements. 

122.  Parol  Evidence  Not  Admissible  to  Vary  or  Contradict  a  Written  Contract. . .  .  108 

123.  When  Parol  Evidence  will  be  Received 110 

124.  Parol  Evidence  to  Explain  Obscure  and  Ambiguous  Contracts 112 

125    Parties  may  be  Held  to  the  Construction  They  have  Themselves  Adopted 113 

126-  Witnesses  cannot  Testify  as  to  the  Meaning  of  a  Contract 114 

127.  The  Intention  of  Parties  should  Control        115 

128    Rule  against  Parol  Evidence  Applies  Only  in  Suits  between  the  Parties  to  Con- 
tract.   115 

129.  Contracts  Obtained  by  Fraud  or  Duress 115 

130.  Independent  Oral  Agreements 117 

131.  Subsequent  Promises  Must  be  Founded  upon  a  Consideration 118 


PART   II. 

BIDS  AND  BIDDERS. 
CHAPTER  VI 

THE   RIGHTS   AND   LIABILITIES   OF  BIDDERS  FOR   PUBLIC   WORK. 

The  Advertisement.     Instruction  to  Bidders  and  Forms  for  Proposals.     Formalities, 
Requirements,  and  Restrictions  Imposed  on  Bidders. 

132    Mode  of  Entering  into  Construction  Contracts 120 

133,  The  Advertisement  or  Notice  to  Bidders— Invitation  to  Contractors  and  Build- 
ers to  Make  Proposals 122 

134  The  Form  of  Advertisement  to  be  Adopted  123 

135  As  Regards  the  Advertisement  or  General  Notice  to  Bidders 124 

136  Instructions  to  Bidders— Work  is  Undertaken  by  What  Authority  and  under 

What  Restrictions 126 

137.  Necessity  for  Restrictions  and  Regulations 127 

138.  The  Requirements  of  the  Act  or  Charter  are  Imperative 127 

139.  Instructions  should  Give  All  Necessary  Information  to  Bidders 129 

140.  There  must  Be  Competition,  in  Compliance  with  the  Statute  or  Charter 130 

141    Public  Officers  cannot  Legalize  nor  Ratify  Void  Contracts 13J 


CONTENTS.  xi 

SECTIONS  PACK 

142.  The  Legislature  May  Ratify  Contracts 132 

143.  A  Contractor  cannot  Recover  under  a  Void  or  Illegal  Contract 132 

144.  Labor  Laws  and  Limitations  must  be  Complied  With 134 

145.  Form  of  Notice  and  Instructions 13(3 

146.  Bidders  may  be  Required  to  Possess  Certain  Qualifications 138 

147.  Restrictions  which  Exclude  Certain  Persons  from  Bidding 139 

148.  There  Must  be  No  Collusion  or  Other  Efforts  to  Prevent  Competition „ .  13^ 

148a.  Possibility  of  the  Law  Being  Used  to  Escape  Onerous  Contracts 142 

149.  What  is  Good  Evidence  of  Fraud  and  Collusion  of  Public  Officers  and  Ser- 

vants   143 

150.  Oath  as  to  Truthfulness  of  Statements 144 

151.  Forms  to  be  Used  and  Formalities  to  be  Observed 144 

152.  Propriety  of  Certain  Requirements  and  Restrictions 148 

153.  There  should  be  a  Standard  for  Comparison  of  Bids 149 

154.  Full  Information  as  to  the  Work  should  be  Furnished 149 

155.  The  Bid  should  Contain  neither  More  nor  Less  than  is  Called  for  by  the  Instruc- 

tions, Plans,  and  Specifications 150 

156.  Contracts  Must  be  Strictly  According  to  Terms  of  Advertisement,  Plans,  and 

Specifications  by  which  Bids  were  Invited 152 

157.  When  Amount  of  Work  Cannot  be  Determined 152 

158.  Right  to  Make  Changes  and  Alterations  Reserved 156 

159.  Instances  where  Contract  has  been  Sustained „ 156 

1(50.  Works  Whose  Cost  Exceeds  a  Certain  Amount  Within  the  Statute,  Charter,  or 

Ordinance 157 

161.  What  Work  Comes  Within  the  Statute 15& 

162.  State  or  City  to  Furnish  Certain  Things  at  a  Specified  Price 159 

163.  Contracts  for  Patented  Articles  or  Materials  of  a  Special  Manufacture 159 

164.  Instances  where  Contracts  have  been  Made  for  Things  in  Which  there  Was  a 

Monopoly 160 

165.  Conditions   and   Stipulations  as  to  the  Performance  and  Completion  of  the 

Work 161 

166.  Conditions  and  Stipulations  as  to  Performance  and  Completion  of  the  Work. . .  164 

167.  Bond  or  Certified  Check  to  Insure  the  Execution  of  the  Contract,  and  Security 

for  its  Faithful  and  Complete  Performance 164 

168.  Bond  and  Certified  Check  to  Insure  the  Execution  of  the  Contract  and  Surety 

for  Faithful  Performance  and  Completion  of  the  Work 167 

169.  Proposal  to  be  Accompanied  by  Consent  of  Sureties. 168 

170.  Information  to  be  Furnished  and  Conditions  to  be  Imposed  when  Contract  is 

Executed 169 

171.  Acceptance  of  Proposal  and  Execution  of  Contract — Right  to  Reject  Bids 170 

172.  Powei  to  Determine  Responsible  Bidder  is  Discretionary 171 

173.  Discretion  Must  be  Exercised  in  Good  Faith 172 

174.  Bids  Rejected  but  Reconsidered  Without  a  New  Advertisement 173 

175.  Not  Always  Necessary  to  Readvertise 173 

176.  Whether  Lowest  Bidder  can  Compel  an  Award  to  Himself 175 

177.  Public  Officer  may  be  Enjoined  from  Illegally  Awarding  Contract 176 

178.  What  Remedies  a  Bidder  May  Have 177 

179.  Liability  of  Public  Officers  for  Acts  Discretionary  or  Quasi  Judicial— Misdeeds 

in  Awarding  the  Contract  . .     179 

180.  Liability  of  Public  Officers  for  Ministerial  Acts 180 

181.  Bids  Cannot  be  Recalled 181 

18-2.  The  Acceptance  or  Award 181 

183.  What  Constitutes  an  Acceptance  of  the  Proposal  or  an  Award  of  the  Contract..  182 

184.  Bid  to  Furnish  Materials 185 

185.  Form  of  Proposal  for  Public  Work 186 

CHAPTER  VII. 

BIDS  AND  BIDDERS.       WORK   FOR  PRIVATE   PARTIES. 

186.  Lowest  Bidder  on  Private  Work.     Owner  may  Adopt  such  Formalities  and 

Make  such  Requirements  as  he  Pleases 192 

187.  In  Absence  of  Agreement  or  Pledge,  Owner  may  Exercise  his  Own  Preference.  19$ 

188.  Implied  Agreement  to  Remunerate  Bidder  for  His  Labor  or  to  Award  Con- 

tract to  Lowest  Bidder. .  194 


CONTENTS. 

PART    III. 

[ENGINEERS  AND  ARCHITECT'S  EMPLOYMENT. 
CHAPTER  VIII. 

EMPLOYMENT    OR    ENGAGEMENT    OF    ENGINEER    OB    ARCHITECT. 

Performance  of  Service,  Term  of  Service,  Dismissal,  or  Discharge,  and  Extra  Work, 

SECTION  PAGB 

200.  Contract  of  Employment 196 

201.  Term  of  Service 196 

202.  Dismissal  or  Discharge  of  an  Employee 198 

203.  Willful  Disobedience  of  Aijy  Lawful  Order  of  the  Employer 198 

204.  Gross  Moral  Misconduct    Pecuniary  or  Otherwise 199 

205.  Habitual  Negligence,  01  Conduct  Calculated  to  Injure  Master's  Business 200 

206.  Incompetence  or  Incapacity 201 

207.  Condonation  of  Employee  s  Offense 202 

208.  What  Is  a  Discharge? 202 

209.  Duty  of  Discharged  Employee  to  Seek  Other  Employment 203 

210.  No  Recovery  for  Extra  Work  Unless  so  Agreed. 205 

211.  Employment  of  Engineer  or  Archil  ct  in  a  Professional  Capacity 205 

212.  What  Constitutes  an  Employment  of  an  Engineer  or  Architect  ?— This  is  Often 

a  Difficult  Question 206 

213.  What  Is  a  Performance  of  a  Contract  of  Service  ? 207 

214.  Recovery  for  Services  Rendered 208 

CHAPTER  IX. 

PROPERTY    OF    ENGINEERS   OR    ARCHITECTS   IN   DESIGNS   AND   INVENTIONS. 

Ownership  of  Plans,  Specifications,  and  Drawings.     Corporeal  and  Incorporeau  Property 

Rights 

215.  Ownership  of  Plans,  Drawings,  and  Designs. , 213 

216.  Incorporeal  Property  in  Architectural  and  Engineering  Designs — Copyright 

and  Patent-right 214 

217.  Rights  of  a  Purchaser  to  Incorporeal  Creations   . .    217 

218.  Copyright  of  Plans  and  Drawings     217 

219.  Rights  of  an  Author,  Inventor,  or  Designer  when  in  the  Employ  of  Another...  218 

220.  Things  Made  or  Created  Outside  of  Office  Hours 220 

221.  Creations  Made  from  Materials  Collected  while  in  Another's  Service 220 

222.  New  Creation  Made  from  Materials  Collected  by  Others 220 

223.  Employees  Right  to  His  Inventions 221 

224.  What  Is  Invention,  and  Who  Is  the  Inventor  ? 222 

225o  Instances  of  Invention  between  Employer  and  Employee 224 

CHAPTER  X. 

LIABILITY   OF   ENGINEER   OR    ARCHITECT   AS   A    PROFESSIONAL   MAN. 

Must  be  Competent,  Skillful,  and  Exercise  Due  Care 

"226.  Engineer's  or  Arciiitect's  Employment  Similar  to  that  of  Other  Professional 

Men... 225 

227.  Undertaking  of  a  Person  Who  Offers  His  Services  in  a  Professional  Capacity.   225 

228.  That   the  Employee  Possesses  Skill  is  Implied  from  the  Undertaking  to  Act. .   226 

229.  Absolute  Accuracy  01  Success  Not  a  Test  of  Skill  or  Capacity  of  a  Man  in  His 

Professional  Capacity 226 


CONTENTS.  xiil 

SECTION  PAGE 

230.  Determination  of  Skill  Possessed  or  Want  of  Skill 227 

281.  Engineer's  or  Architect's  Undertaking  when  He  Accepts  or  Solicits  an  Engage- 
ment     227 

232.  Professional  Man  must  Possess  Ordinary  Skill  and  Exercise  Ordinary  Care. . . .  228 

233.  Negligence  or  Failure  to  Exercise  Reasonable  Care  and  Diligence 228 

234.  Negligence  on  the  Part  of  an  Agent 229 

235.  Negligence  or  Want  of  Care  and  Skill  of  a  Professional  Man 229 

236.  Skill  Required  of  Specialists 230 

237.  Skill  and  Care  Required  of  Engineers  or  Architects — Instances 230 

238.  Owner  may  Offset  His  Damages  Against  Sum  Due  Engineer  or  Architect  for  * 

Services 231 

239.  Architect  or  Engineer  must  Give  Such  Careful  Superintendence  and  Inspec- 

tion as  to  Prevent  the  Contractor  from  Making  Material   Omissions  and 
Variations 232 

240.  Engineer   and  Contractor   or  Architect   and   Builder  Jointly  and   Severally 

Liable    334 

241.  Owner  Not  Linble  for  Misconduct  of  His  Architect 234 

242.  Engineer  and  Architect  are  Liable  to  their  Employer  and  to  Nobody  Else 236 

243.  Liability  for  Acts  of  Assistants 337 

CHAPTER  XI. 

LIABILITY     OF    ENGINEER    OR     ARCHITECT    WHEN    HIS     FUNCTIONS    ARE    JUDICIAL    OR 

DISCRETIONARY. 

244.  Not  Liable  for  Many  Acts  or  Omissions  when  His  Functions  Are  Judicial 238 

245.  Attempts  have  been  Made  -to  Discriminate  between  Judges  in  Court  and  Judi- 

cial Officers 239 

246*.  Engineer's  or  Architect's  Judicial  Status 239 

247.  Engineer  or  Architect  must  Not  Act  Fraudulently 241 

248.  Engineer  is  Liable  to  His  Employer,  when  He  may  Not  be  Liable  to  Con- 

tractor      242 

249.  Engineer  or  Architect  may  Owe  a  Double  Dnty  to  His  Employer,  viz.,  as  an 

Arbitrator  and  a  Professional  Man   244 

249«.  Engineer's  or  Architect's  Knowledge  Is  the  Employer's  Knowledge 245 

CHAPTER  XII. 

LIABILITY    OF    AN    ENGINEER    OR    ARCHITECT    WHEN    A    PUBLIC    OFFICER. 

250.  Position  of  a  Public  Officer 247 

251.  County  Officers  and  Their  Liability 248 

252.  County  and  Municipal  Officers  Compared 248 

253.  Liability  of  a  Public  Officers  for  the  Acts  of  his  Assistants 248 

254.  State  Employees  Held  Liable  for  Negligence 249 

255.  Public  Officers  and  Their  Liability  upon  Contracts  Executed  for  the  State 250 

256.  Officer  or  Employee  Is  Responsible  for  His  False  Representations 251 

257.  Engineer's  and  Architect's  Liability  when  Holding  Office  of  Public  Trust 251 

258.  A  Ci  y  Engineer's  Liability  for  Mistakes 251 

259.  Commissioners  of  Public  Works  and  Their  Liability 253 

259a.  Situation  of  Engineer  or  Architect  in  Injunction  and  Mandamus  Proceedings 

—Liability  for  Contempt. 253 

CHAPTER  XIII. 

COMPENSATION   OF   ENGINEERS   AND   ARCHITECTS. 

Protection  of  Lien  and  oilier  Laws.     Free  Passes. 

260.  Architect's  or  Engineer's  Compensation 257 

261.  Rights  of  Engineers  and  Architects  to  a  Lien  for  Services 257 

262.  If  Architect  or  Engineer  Supervises  and  Directs  Work  He  may  Have  a  Lien  in 

Some  States  258 


XIV  CONTENTS. 

SECTION  PAGE 

263.  Engineers'  or  Architects'  Rights  under  the  Stockholders'  Liability  Acts 2(52 

264.  Compensation  for  Injuries  Received  while  Riding  on  a  Free  Pass 263 

265.  Passes  are  Usually  Given  for  Some  Consideration 264 

266.  Free  Carriage,  without  an  Agreement — Waiving  Damages  for  Gross  Negli- 

gence   264 

CHAPTER  XIV. 

EMPLOYMENT   OP  AN   ENGINEER   OK  ARCHITECT   AS  AN  EXPERT  WITNESS. 

The  Consultation,  Preparation,  and  Behavior  in  Court.     Remuneration  for  His  Services. 

267.  Expert  Witness — Treatment  of  the  Subject 266 

268.  An  Expert  Should  Take  Time  to  Investigate  and  Decide  before  Giving  an 

Opinion 266 

269.  Expert  must  have  Regard   for  the   Understanding  and    Knowledge  of    His 

Audience 267 

270.  Esteem  in  which  Experts  are  Held  by  Bench  and  Bar 268 

271.  Biased  and  Warped  Judgments  are  Not  Confined  to  Professors  of  Science  ....  269 

272.  Experts  Are  Champions  of  Their  Clients  as  Well  as  Attorneys 270 

273.  Candid  Opinions  of  Experts  may  be  Had  if  They  are  Sought 270 

274.  It  is  the  Duty  of  Every  Citizen  to  Promote  Justice 271 

275.  The  Preparation — Expert  Witness  should  Not  Only  be  Informed,  but  He  must 

be  Prepared  to  Convince  Others 273 

276.  Use  of  Books  by  Expert  Witness 37  3 

277.  Witness  may  Use  a  Book,  Chart,  or  Prepared  Memoranda  to  Refresh  His 

Memory 274 

278.  Use  of  Written  Memoranda  and  Copies  Thereof ,270 

279   Use  of  Maps,  Plans,  Photographs,  and  Models  in  Court 277 

280.  Use  of  Photographs  as  Evidence 277 

281.  Expert  Witness  should  Fortify  His  Opinions  with  Authority  and  Undisputed 

Facts 279 

282.  Experts  should  Seek  the  Confidence  and  Re  pect  of  the  Court 279 

283.  Trial  Court  Determines  the  Privileges  of  an  Expert  Witness ^>80 

284.  Behavior  of  Expert  Witness  in  Court— When  will  Expert  Testimony  be  Ad- 

mitted    281 

285.  Some  Questions  Held  Not  to  Require  Experts  to  Determine ^S2 

x86.  Expert  cannot  Determine  Questions  which  the  Jury  are  to  Decide ^84 

287.  Hypothetical  Questions  may  be  Asked  of  an  Expert  Witness , 285 

288.  Witness  Acquainted  with  Facts  of  Case ^86 

289.  Weight  and  Value  of  an  Expert's  Testimony  is  Determined  by  Jury 287 

290.  Expert  Witness  must  Not  Try  to  Determine  Questions  which  Determination  Is 

for  the  Court  or  Jury 288 

291.  Qualifications  of  an  Expert— Who  may  Be  an  Expert  Witness 289 

292.  Witness  may  Employ  Practical  Illustrations  and  Experiments 294 

292a.  Judicial  Notice 296 

293.  Right  to  Use  Models  and  Make  Tests  Rests  with  Trial  Court 297 

294.  An  Expert's  Advice  to  Fellow-Experts 298 

~95.  Experts  as  Assistants  in  Examination  of  Witnesses  by  Attorneys 299 

296.  Compensation — Reward  for  Services  as  an  Expert  Witness 2t9 

297.  Expert  Witness  in  Civil  and  Criminal  Cases  Distinguished   301 

298.  If  Expert  Has  Knowledge  of  Facts  of  Case,  He  must  Testify 301 

299.  Expert's  Knowledge,  Experience,  and  Character  may  be  Inquired  Into 302 

300.  If  Expert  cannot  Collect  Extra  Compensation,  then  no  Extra  Preparation  can 

be  Required 302 

301.  Legislation  is  Needed  to  Improve  Expert  Testimony 302 


ENGINEEEING     AND     AKCHITECTTJRAL 
JUKISPBUDENCE. 


PART   I. 
LA  W  OF  CONTRACTS  IN  GENERAL. 


CHAPTER  I. 
LAW  OF  CONTRACTS  IN  GENERAL. 

ESSENTIAL  ELEMENTS   OF   A   CONTRACT.      LEGAL   AND   ILLEGAL  CONTEACTS. 
THE   PARTIES   TO   A   CONTRACT. 

1.  Introduction. — Engineering  and  architectual  construction  is  rarely 
undertaken  by  the  owners  or  proprietors  of  the  structure.     Works  of  mag- 
nitude or  importance  require  the  services  of  engineers,  architects,  and  skilled 
mechanics  who  have  had  practical  experience.     Structures  are  not  erected 
by  the  parties  who  own  them  and  are  to  control  them,  but  by  parties  who 
have  no  interest  in  them  except  what  they  assume  for  hire,  or  the  profit 
that  they  can  make  out  of  the  job.     The  relations  created  are  those  of  an 
employe  or  of   an  independent  contractor,  and  whichever  role  is  assumed, 
they  are  relations  and  obligations  growing  out  of  an  agreement  or  under- 
standing called  a  contract.     All  work  of  importance  is  the  subject  of  a  con- 
tract, and  it  is  manifest  at  the  beginning,  that  a  clear  understanding  of  the 
legal  status  of  the  parties  engaged  upon  construction  will  require  some 
knowledge  of  the  law  of  contracts.     The  reader  is  first  introduced,  there 
fore,  to  the  principles  underlying  the  law  of  contracts. 

To  assume  contract  obligations,  the  law  requires  that  the  parties  shall 
observe  certain  formalities  and  that  their  intentions  shall  be  evidenced  by 
overt  acts,  which  may  be  made  a  matter  of  record.  Part  of  the  requirements 
are  fundamental  principles  of  the  English  common  law,  some  are  the  effect 
of  statutory  limitations,  while  others  are  the  result  of  court  procedure,  and 
not  a  few  rest  upon  that  broad,  yet  vague,  ground  of  "public  policy." 

2.  Essential  Elements  of  a  Contract. — Every  binding  contract  must  con- 
tain four  essential  elements,  viz. :  1.  Two  parties  with  capacity  to  contract. 
2.  A  lawful  consideration:  a  something  in  exchange  for  its  legal  equivalent, 


:2  ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.      [§  3. 

a  quid  pro  quo.  3.  A  lawful  subject-matter,  whether  it  be  a  promise,  au 
act,  or  a  material  object.  4.  Mutuality:  a  mutual  assent,  a  mutual  under- 
standing, and  a  meeting  of  the  minds  of  the  parties.1  These  elements  of  a 
simple  contract  are  of  the  foundation  of  the  English  common  law,  and  no 
agreement,  so  called,  is  a  binding  contract  unless  it  embodies  each  and  all  of 
these  essentials.  Without  them  our  courts  decline  to  recognize  the  binding- 
effect  of  the  agreement  and  the  parties  are  free  to  fulfil  their  obligations  or 
not  at  their  pleasure.2 

The  order  in  which  these  elements  are  given  was  adopted  because  it 
seems  the  safest  and  most  rational  treatment  of  the  subject  of  contracts 
A  contract  requires  that  there  shall  be,  first,  two  competent  parties;  secondly, 
a  lawful  consideration;  thirdly,  a  lawful  subject-matter;  and  lastly,  a  meet- 
ing of  the  minds  of  the  parties  with  regard  to  the  parties,  the  subject-mat- 
ter, and  the  consideration.  If  these  essentials  were  considered  in  the  order 
given,  there  would  be  fewer  cases  of  hardships  and  less  litigation  over  con- 
tract rights.  The  mischief  frequently  results  from  the  parties  mutually  con- 
senting to  be  bound  and  exchanging  the  considerations  before  the  questions 
of  competency  of  the  parties  and  the  legality  of  the  act  undertaken  have 
oeen  considered.  The  order  adopted  is  that  usually  followed  in  written  con- 
tracts. The  author  has  followed,  as  closely  as  a  liberal  treatment  would 
seem  to  permit,  the  lines  of  an  engineering  and  architectural  construction 
contract,  and  throughout,  so  far  as  possible,  he  has  cited  cases  that  have 
arisen  under  such  contracts. 

3.  The  Introduction  to  a  Contract. — Contracts  are  generally  begun  by 
introductory  clauses  peculiar  to  the  law,  though  no  special  form  is  required. 
The  forms  employed  are  as  various  and  eccentric  as  the  persons  who  frame 
them;  but  of  them  all,  it  is  submitted  that  either  of  the  following  forms 
will  answer  in  any  contract  for  construction  work : 

[Heading.] 

"THIS  AGREEMENT,  made  and  entered  into  [concluded]  this 
day  of in  the  year  by  and  be- 
tween   etc.,  etc.," 

is  a  concise  and  direct  introduction,  and  it  is  the  most  common  form  used 

in  all  contracts. 

"  [THESE]  ARTICLES  OF  AGREEMENT,  made  and  entered  into 

between of and of on  this day 

of "— 

is  a  good  and  popular  clause.     These  are  mere  forms,  and  their  selection 

f\  mere  matter  of  taste  with  the  draftsmen. 

1  'if  the  contract  be  a  written  instrument  void  is  equivalent  to  finding  that  there  was 

it  must  be  delivered.  Leonardo.  Kebler's  no  written  contract  at  all.  Rebman  V. 

Adm'r  (Ohio  Sup.),  34  N.  E.  Rep.  659.  San  Gabriel  Val.  Land  &  Water  Co.  (Cal.), 

8  A  finding  that  a  written  contract  was  30  Pac.  Rep.  564. 


§  5.]  LAW  OF  CONTRACTS.  3 

4.  Designation  of  the  Parties.— 

— "  by  and   between (name  of  owner,  company,  board,  city,  university, 

or  other  corporation) ,  of  the  City  of  [Town  of  ] ,  County 

of ,  State  of ,  party  of  the  first  part,  and 

(name  of  contractor  01  company-'    of    the    City    of ,    County    of , 

State. of ,  party  of  the  second  part." 

The  parties  of  a  contract  are  designated  as  parti/  of  the  first  part  and 
party  of  the  second  part,  the  former  being  conventionally  applied  to  the 
person  who  contracts  to  sell,  to  lease,  or  to  have  performed  the  subject-mat- 
ter of  the  contract,  and  the  latter  title  to  the  person  agreeing  to  take  or 
purchase  the  article  or  to  perform  the  contract.  These  terms  are  frequently 
avoided  by  using  instead  the  names  of  the  parties,  referring  to  them  as  the 

Said ,the  Said  Contractor,  the  Said  Owner,  the  Said  Board,  City, 

Company,  University,  etc.  This  avoids  confusion  and  the  danger  of  the 
parties  forgetting  to  which  party  he  or  they  belong.  A  man  will  hardly 
fail  to  recognize  his  own  name  or  that  he  is  a  contractor,  when  he  might  not 
remember  that  he  is  the  party  of  the  second  part.  When  reference  is  made 
to  the  parties  as  the  City,  Board,  Company,  etc.,  or  as  the  Contractor  or  the 
Engineer,  it  is  customary  and  prudent  to  insert  a  clause  explaining  who  is 
intended  and  included  within  the  terms,  as  in  the  following  clauses: 

"  That  whenever  and  wherever  in  this  contract  the  phrase  ( party  of 
the  second  part/  or  the  word  '  Contractor,'  or  a  pronoun  in  place  of 
either  of  them  is  used,  the  same  shall  be  taken  and  deemed  to  mean  and 
intend  the  party  of  the  second  part  to  this  agreement  (his  [their]  heirs, 
executors,  administrators,  or  assigns). 

"  That  whenever  the  word  '  Engineer '  is  used  in  these  specifications, 
or  in  this  contract,  it  refers  to  and  designates  the  Chief  Engineer  of 
the  owner,  company,  or  city  for  the  time  being,  acting  either  directly 
or  through  the  Deputy  Chief  Engineer  or  any  Assistant  or  Division 
Engineer  having  general  charge  of  the  work,  or  through  any  Assistant, 
or  any  Inspector  having  immediate  charge  of  a  portion  thereof,  limited 
by  the  particular  duties  entrusted  to  him. 

"  That  whenever  the  word  *  Owner/  '  Company/  or  '  City  '  is  used  in 
these  specifications,  or  in  this  contract,  it  refers  to  and  designates  the 
parties  of  the  first  part  to  this  agreement  (his  [their]  heirs,  executors, 
administrators  or  assigns)  (or  its  successors  or  assigns)/' 

AS   REGARDS  THE   PARTIES. 

5.  Parties  to  the  Contract. — There  must  be  two  parties  to  every  con- 
tract, the  one  who  is  bound  to  perform  the  contract  and  the  other  who 
is  entitled  to  have  it  performed.1  A  person  cannot  contract  with  him- 

1  A  contract  may  be  made  to  ray  some  though  by  the  law  of  merchants'  bills  and 
unknown  party  to  be  ascertained  a  some  notes  are  placed  upon  a  footing  peculiar  to 
future  time  upon  a  contingent  event.  themselves.  An  advertisement  offering  a 
Notes  payable  to  bearer,  or  to  an  indorser,  reward  is  an  offer  only,  and  is  not  a  con- 
may  be  inenlioned  as  such  contracts,  tract  until  accepted  by  the  person  who  per- 


'2  ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.      [§  3. 

a  quid  pro  quo.  3.  A  lawful  subject-matter,  whether  it  be  a  promise,  an 
act,  or  a  material  object.  4.  Mutuality:  a  mutual  assent,  a  mutual  under- 
standing, and  a  meeting  of  the  minds  of  the  parties.1  These  elements  of  a 
simple  contract  are  of  the  foundation  of  the  English  common  law,  and  no 
agreement,  so  called,  is  a  binding  contract  unless  it  embodies  each  and  all  of 
these  essentials.  Without  them  our  courts  decline  to  recognize  the  binding 
effect  of  the  agreement  and  the  parties  are  free  to  fulfil  their  obligations  or 
not  at  their  pleasure.2 

The  order  in  which  these  elements  are  given  was  adopted  because  it 
seems  the  safest  and  most  rational  treatment  of  the  subject  of  contracts 
A  contract  requires  that  there  shall  be,  first,  two  competent  parties;  secondly, 
a  lawful  consideration;  thirdly,  a  lawful  subject-matter;  and  lastly,  a  meet- 
ing of  the  minds  of  the  parties  with  regard  to  the  parties,  the  subject-mat- 
ter, and  the  consideration.  If  these  essentials  were  considered  in  the  order 
given,  there  would  be  fewer  cases  of  hardships  and  less  litigation  over  con- 
tract rights.  The  mischief  frequently  results  from  the  parties  mutually  con- 
senting to  be  bound  and  exchanging  the  considerations  before  the  questions 
of  competency  of  the  parties  and  the  legality  of  the  act  undertaken  have 
oeen  considered.  The  order  adopted  is  that  usually  followed  in  written  con- 
tracts. The  author  has  followed,  as  closely  as  a  liberal  treatment  would 
seem  to  permit,  the  lines  of  an  engineering  and  architectural  construction 
contract,  and  throughout,  so  far  as  possible,  he  has  cited  cases  that  have 
arisen  under  such  contracts. 

3.  The  Introduction  to  a  Contract. — Contracts  are  generally  begun  by 
introductory  clauses  peculiar  to  the  law,  though  no  special  form  is  required. 
The  forms  employed  are  as  various  and  eccentric  as  the  persons  who  frame 
them;  but  of  them  all,  it  is  submitted  that  either  of  the  following  forms 
will  answer  in  any  contract  for  construction  work : 

[Heading.] 

"  THIS  AGREEMENT,  made  and  entered  into  [concluded]  this 
day  of in  the  year  by  and  be- 
tween  etc.,  etc.," 

is  a  concise  and  direct  introduction,  and  it  is  the  most  common  form  used 

in  all  contracts. 

"  [THESE]  ARTICLES  OF  AGREEMENT,  made  and  entered  into 

between of and of on  this day 

of »— 

is  a  good  and  popular  clause.     These  are  mere  forms,  and  their  selection 

f\  mere  matter  of  taste  with  the  draftsmen. 

, ,  *  "if  the  contract  be  a  written  instrument  void  is  equivalent  to  finding  that  there  was 

it  must  be  delivered.     Leonard  •».  Kebler's  no    written     contract  at  all.     Rebman  v. 

Adm'r  (Ohio  Sup.),  34  N.  E.  Rep.  659.  San  Gabriel  Val.  Land  &  Water  Co.  (Cal.), 

8  A  finding  that  a  written  contract  was  30  Pac.  Rep.  564. 


§  5.]  LAW  OF  CONTRACTS.  3 

4.  Designation  of  the  Parties.— 

— "  by  and   between (name  of  owner,  company,  board,  city,  university, 

or  other  corporation) ,  of  the  City  of  [Town  of  ] ,  County 

of   .  . . ,  State  of ,  party  of  the  first  part,  and 

(name  of  contractor  ot  company  J    of   the    City   of ,    County   of , 

State,  of ,  party  of  the  second  part." 

The  parties  of  a  contract  are  designated  as  party  of  the  first  part  and 
party  of  the  second  part,  the  former  being  conventionally  applied  to  the 
person  who  contracts  to  sell,  to  lease,  or  to  have  performed  the  subject-mat- 
ter of  the  contract,  and  the  latter  title  to  the  person  agreeing  to  take  or 
purchase  the  article  or  to  perform  the  contract.  These  terms  are  frequently 
avoided  by  using  instead  the  names  of  the  parties,  referring  to  them  as  the 

Said ,the  Said  Contractor,  the  Said  Owner,  the  Said  Board,  City, 

Company,  University,  etc.  This  avoids  confusion  and  the  danger  of  the 
parties  forgetting  to  which  party  lie  or  they  belong.  A  man  will  hardly 
fail  to  recognize  his  own  name  or  that  he  is  a  contractor,  when  he  might  not 
remember  that  he  is  the  party  of  the  second  part.  When  reference  is  made 
to  the  parties  as  the  City,  Board,  Company,  etc.,  or  as  the  Contractor  or  the 
Engineer,  it  is  customary  and  prudent  to  insert  a  clause  explaining  who  is 
intended  and  included  within  ihe  terms,  as  in  the  following  clauses: 

"  That  whenever  and  wherever  in  this  contract  the  phrase  '  party  of 
the  second  part/  or  the  word  *  Contractor,'  or  a  pronoun  in  place  of 
either  of  them  is  used,  the  same  shall  be  taken  and  deemed  to  mean  and 
intend  the  party  of  the  second  part  to  this  agreement  (his  [their]  heirs, 
executors,  administrators,  or  assigns). 

"  That  whenever  the  word  '  Engineer '  is  used  in  these  specifications, 
or  in  this  contract,  it  refers  to  and  designates  the  Chief  Engineer  of 
the  owner,  company,  or  city  for  the  time  being,  acting  either  directly 
or  through  the  Deputy  Chief  Engineer  or  any  Assistant  or  Division 
Engineer  having  general  charge  of  the  work,  or  through  any  Assistant. 
or  any  Inspector  having  immediate  charge  of  a  portion  thereof,  limited 
by  the  particular  duties  entrusted  to  him. 

"  That  whenever  the  word  '  Owner/  '  Company/  or  '  City  '  is  used  ini 
these  specifications,  or  in  this  contract,  it  refers  to  and  designates  the= 
parties  of  the  first  part  to  this  agreement  (his  [their]  heirs,  executors, 
administrators  or  assigns)  (or  its  successors  or  assigns)/' 

AS   REGARDS  THE   PARTIES. 

5.  Parties  to  the  Contract. — There  must  be  two  parties  to  every  con- 
tract, the  one  who  is  bound  to  perform  the  contract  and  the  other  who 
is  entitled  to  have  it  performed.1  A  person  cannot  contract  with  him- 

1  A  contract  may  be  made  to  ray  some  though  by  the  law  of  merchants'  bills  and 
unknown  party  to  be  ascertained  a  some  notes  are  placed  upon  a  footing  peculiar  to 
future  time  upon  a  contingent  event.  themselves.  An  advertisement  offering  a 
Notes  payable  to  bearer,  or  to  an  indorser,  reward  is  an  offer  only,  and  is  not  a  con- 
may  be  mentioned  as  such  contracts,  tract  until  accepted  by  the  person  who  per- 


4  ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.      [§  6. 

self  ;'  and  a  promise  to  pay  money  to  oneself  is  not  a  promissory  note.2  One 
and  the  same  person  cannot  be  party  to  a  contract  on  both  sides;  such  an  in- 
strument can  create  no  liability  or  right  to  a  contract.  Companies  are  some- 
times formed  into  departments  and  their  accounts  kept  separate  and  distinct^ 
but  such  departments  cannot  enter  into  agreement  between  themselves,  nor 
assume  obligations  that  can  be  enforced.  The  departments  must  each 
be  independently  incorporated  and  have  a  separate  existence.8  The  same 
person  cannot  be  party  to  both  sides,  although  other  parties  are  joined  with 
him  on  one  side  or  the  other;  and  an  agreement  in  such  a  form  creates  no 
legal  right  or  liability.  The  reason  of  this  is  that  it  is  impossible  for  a  man 
to  sue  himself.4  Notes  or  contracts  made  by  several,  jointly  or  severally,  can- 
not, however,  be  avoided  for  this  reason.4  For  the  same  reason  it  has  been 
held  that  a  partner  cannot  contract  with  his  firm,  and  that  two  firms 
having  a  common  partner  could  not  incur  liability  by  contract.4  It  has 
"been  held  (1824)  that  the  engineer  of  a  bridge  who  was  a  shareholder  in  a 
bridge  firm  could  not  maintain  an  action  against  his  firm,  being  himself  a 
partner.5  The  tendency  to-day  is  to  regard  a  partnership  in  the  same  light 
as  a  corporation,  to  treat  it  as  an  entity,  an  artificial  body  independent  of 
the  partners  who  comprise  it.  On  this  theory  it  has  been  held  that  firms 
having  a  common  partner  can  sue  each  other  in  equity  or  in  those  states 
where  the  code  is  established.0  Agreements  between  partners  have  been 
allowed  in  equity  as  matters  of  account  in  settling  affairs  of  the  partner- 
ship.7 It  is  hardly  necessary  to  say  that  one  company  may  contract  with 
another  even  though  there  are  directors  in  one  that  hold  a  like  office  in  the 
other;  the  company  or  corporation  being  regarded  as  a  creation  of  itself, 
independent  of  the  persons  who  represent  it. 

6.  Only  Parties  to  Contract  are  Bound. — Generally  speaking,  the  legal 
effect  of  a  contract  is  restricted  to  the  parties  and  no  right  or  liability  can 
result  to  a  person  who  is  not  a  party.8     AVhen  a  contract  is  made  with  two 
or  more  persons  for  some  act  to  be  done  or  payment  to  be  made  to  one  of 
them  only,  the  right  to  have  it  done  or  paid  accrues  to  all  the  persons,  who 
must  all  join  in  suing  upon  it,  although  only  one  is  to  have  the  benefit.0 

7.  Legal  Representatives  of  the  Parties. — In  drafting  construction  con- 
tracts it  is  usual  to  provide  for  the  death  or  incompetence  of  either  party 
by  making  the  party's  heirs,  executors,  administrators,  or  -assigns  of  a  per- 
son, or  the  successors  and  assigns  of  a  corporation,  parties  to  the  contract, 
after  the  following  manner: 


forms  the  services  for  which  the  reward  is  4  Leake's  Digest  of  Contracts  440. 

offered.  5Moneypenny  *.     Hartland,    1    Car.  i 

1 2  Wall.  78,  36  Fed.  Rep.  213.  Payne  352. 

5  Commonwealth  v.  Dallinger,  118  Muss.  6  Ames'  Cases  on  Partnership,  chap.  vl. 

439;  other  cases  in  Ames'  Cases  on   BilU  7  Leake's  Digest  of  Contracts  440. 

iind  Notes  133.  s  3  Amer.  &  Eng.  Ency.  Law  868. 

3  Grey  v.  Ellison,  1  Giff.  433.  9  Leake's  Digest  of  Contracts  442. 


§9.]  LAW  OF  CONTRACTS.  5 

"  The  said  Party  of  the  Second  Part  [the  said ,  or  the  said  Builder, 

or  the  said  Contractor]  does  hereby,  for  himself,  his  heirs,  executors, 
and  administrators,  covenant,  promise,  and  agree  to  and  with  the  said 

Party  of  the  First  Part  [the  said ,  or  the  said  owner,  company,  or 

city],  his  (their)  executors,  administrators,  or  assigns  [or  its  successors 
and  assigns],  that  he,  the  said  ,  his  (their)  executors,  administra- 
tors, etc.,  shall  or  will,  for  the  considerations  hereinafter  mentioned,, 
etc.,  erect,  build,  etc/' J 

In  case  of  death  or  assignment  these  parties,  who  may  be  called  second- 
ary parties,  become  the  representatives  of  the  principal  party  and  take  his 
place,  so  far  as  is  possible. 

8.  The  Representatives  after  Death,  or  Changes  Effected  by  Law.— 
Executors  and  administrators  are  the  personal  representatives  of  a  party  as 
to  his  personal  estate  after  his  death.     The  right  to  enforce  certain  con- 
tracts of  the  party  whom  they  represent  has  been  recognized  from  the 
earliest  times.2     This  right  belongs  exclusively  to  the  executor,  or  adminis- 
trator, or  successors,  and  it  cannot  be  transferred  to  other  parties  by  words 
introduced  into  the  body  of  the  contract.     The  personal  representative  may 
maintain  an  action  to  recover  money  payable  to  the  person  he  represents, 
though  the  contract  failed  to  make  the  money  payable  to  his  executor  or 
administrator.     If  the  contract  made  it  payable  to  the  contractor  or  his 
assigns,  or  to  his  heirs  or  executors,  the  personal  representative  may  recover 
without  even  averring  that  the  money  has  not  already  been  paid  to  the 
heirs.3    So,  too,  the  personal  representative  is  liable  on  the  con  tract,  although 
not  named  in  the  terms.4     The  executor  or  administrator  has  been  held 
liable  even  when  the  heirs  were  named  and  the  executors  were  not.5     If  a 
house  is  to  be  completed  before  a  certain  time,  the  contractor's  executor  or 
administrator  is  bound  to  perform  the  contract,  or  to  enforce  its  perform- 
ance on  the  part  of  the  owner.     The  heir  cannot  enforce  its  performance 
even  if  the  profits  are  partly  in  lands.6     In  the  interests  of  the  estate  the 
personal  representative  may  rescind  the  contract  of  his  decedent,  with  the 
consent  of  the  company  or  other  party.7     It  is  a  presumption  of  law  that 
parties  to  a  simple  contract  intend  to  bind  not  only  themselves  but  their 
personal  representatives.8 

9.  Executor  or  Administrator  Takes  Benefits  and  Burdens  of  Contract.— 
An  executor  becomes  entitled  to  the  benefit  of  the  contracts  of  a  deceased 
contractor  for  the  supply  of  materials,  or  for  the  execution  of  works  remain- 
ing incomplete  at   his  death  that  do  not  involve  the  personal  skill  and 
ability  of  the  contractor;  and  he  is  entitled  as  executor  to  complete  the 

1  The  representative  may  be  mentioned  3  7  Amer.  &  Eng.  Ency.  Law  262. 

as  in  the  form  given  in   Soc.  4,  page    3,  4  7  Amer.  &  Eng.  Ency.  Law  326. 

which  is  simpler  in  tnat  it  avoids  the  con-  5  7  Amer.  &  Eng.  Ency.  Law  327. 

stant  repetition  of  the  words    "  heirs,  ex-  6  Crans  v.  Kans.  Pac.   R.  Co.,  131  Q.  S. 

ecutors,    administrator,  or  assigns  "  in  the  clxviii  (1879). 

text  of  the  contract.  7  7  Amer.  &  Eng.  Ency.  Law  327. 

*  Pollock  on  Contracts  206.  8  2  Parsons  on  Contracts  (6th   ed  )  530. 


6  ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  10. 

works,  and  to  recover  their  value  for  the  benefit  of  the  contractor's  estate. 
In  the  case  of  an  ordinary  building  contract  undertaken  and  commenced 
by  the  deceased  builder,  the  executor  may  complete  it  and  recover  the  price 
in  his  representative  character.1  A  contract  to  build  a  lighthouse  was  held 
to  be  discharged  by  the  death  of  the  contractor,  on  the  ground  of  its  being 
a  matter  of  personal  skill  and  science.2 

10.  Contracts  for   Personal  Skill  of  Contractor. — Whether   or  not   the 
executor  or  administrator  of  an  estate  can  carry  out  and  receive  the  benefits 
of  the  contractor's  contracts  depends  upon  the  character  of  the  work.     It 
may  well  be  doubted   that   the  representative  of  a  physician,  lawyer,  or 
engineer  would  be  allowed  to  step  into  the  shoes  of  the  deceased.     A  con- 
tractor or  builder  may  have  acquired  a  reputation  in  the  construction  of 
a  particular  kind  or  class  of  work,  in  which  his  personal  skill  and  proficiency 
are  the  important  consideration  in  employing  him.     If  this  can  be  proved , 
then  the  contract  cannot    be   performed    by  the  executor,  administrator, 
or  the  assignee.3     If  the  contract  is  not  founded  upon  personal  relations, 
or  does  not  require  personal  skill,  it  survives  to  the  executor  or  administra- 
tor, and  the  estate  may  be  held  liable  for  a  breach  committed  after  as  well 
as  before  the  death  of  the  contractor.4     It  has  been  held  in  New  York 
State  that  a  contract  to  do  certain   repairs  on  a  building  for  a   specific 
sum  is  not  a  personal  contract,  which  is  terminated  by  the  death  of  the 
owner,  but  the  contractor  can  recover  of  the  administrator  for  work  done 
thereunder  after  the  death  of  the  owner,  though  the  owner  devised  the 
property  and   the   devisee  directed  the  contractor  to  continue  the  work. 
Ordinary  contracts  for  engineering  and  architectural  work  pass  to  the  con- 
tractor's legal  representatives,  who  take  the  burdens  as  well  as  the  bene- 
fits.6    A  coat  ordered  of  a  tailor,  who  began  to  make  it  and  died  before 
completion,  was   completed  and  delivered  by  his  administrator,  who   re- 
covered the  price  in  his  representative  character.7* 

11.  Executor  Named  in  Contract. — It  is  not  necessary  that  the  executor 
or  administrator  be  named  in  terms;  if  the  contract  be  of  such  a  character 
that  it  survives,  the  personal  representative  of  the  contractor  is  liable  upon 
it.8     If  the  executor  be  named,  it  is  evidence  that  the  parties  did  not  con- 
sider the  contractor's  services  as  personal.     If  the  contract  is  between  a  city 

Stellman  0.  Northup,  109  N.  Y.  473;  Pol-  Siboni  v.  Kirkman,  1  M.  &  W.  418. 

lock  on  Contracts  206;  126  N.  Y.  45.  As  to  what  contracts  will  be  considered 

1  Leake's  Digest  of  the  Law  of  Contracts,  personal,  see  Robinson  v.  Davidson,  L.  R. 
1254.  6  Excb.  269,  274;  Cooper  v.  Jarrnan,  L.  R. 

2  Wentwortb  v.  Cock,  10  A.  &  E.  45.  3  Eq.  Cas.  98;  Dickinson  c.  Callaban,  19 

3  Robinson  v.   Davidson,  L.  R.  6  Excb.  Pa.  St.  227. 

269;  and  see  Lloyd's  Law  of  Building,  §  12.  The  contract  of  an  author  to  write  a  book 

4  Cooper  v.  Jarman,   L.  R.  3  Eq.  98;  7  is  discharged   by  his  death      Marshall   v. 
Amer.  &  Eng.  Ency.  of  Law  326.  Broad  hurst  (Eng.),  1  C.  &  J.  403. 

5  Russell  v.  Bnckhout  (Sup.),  34  N.  Y.  7  Werner  v.  Humphreys,  2  M.  &  G.  853. 
Supp.  271,  Dykunau,  J.,  dissenting.  8 Quick  v.   Ludburrow,   £  Bulstr.  30;  7 

6Wentworth  v.   Cock,   10  A.  &  E.  45;      Amer.  &  Eng.  Ency.  Law  326. 

*  See  Sec.  12,  infra. 


§12.]  LAW  OF  CONTRACTS.  7 

and  a  corporation,  "its  successors  and  assigns,"  for  erecting  waterworks 
and  furnishing  water  to  the  city,  it  is  assignable  by  the  corporation.1  If  a 
party  contract  for  himself  and  his  executors  to  build  a  structure  and  die, 
the  executors  must  go  on  or  they  will  be  liable  for  damages  for  not  com- 
pleting the  work.  If  they  do  go  on,  they  may  recover  as  executors  and  the 
money  when  recovered  will  be  assets  in  their  hands.2  Hence  the  advis- 
ability of  a  contractor's  making  his  executor  or  administrator  a  party  to  his 
contract.8  Contracts  founded  on  personal  qualifications,  as  skill,  ability,  or 
integrity,  such  as  the  employment  of  an  agent,  a  servant,  an  artist,  an 
author,  an  architect,  and  an  engineer,  terminate  with  the  death  of  the 
employer  or  employee  in  the  absence  of  express  stipulation.4 

A  contract  for  the  employment  of  an  agent  by  a  partnership  is  dis- 
charged by  the  death  of  one  of  the  partners.5  Therefore  the  legal  repre- 
sentatives cannot  enforce  such  agreements;  and  frequently,  if  the  contract 
be  for  a  completed  structure  or  piece  of  work,  the  representatives  cannot 
recover  for  the  services  performed. 

12.  Executor's  Liability  on  Contracts  and  for  Torts  of  Party. — An  exec- 
utor or  administrator  has  power  to  complete  a  contract  made  by  the  person 
he  represents,  but  he  cannot  by  virtue  of  the  general  powers  of  his  office 
make  contracts  which  shall  bind  the  decedent's  estate.  The  effect  of  such 
contracts  is  to  bind  the  representative.6  For  goods  or  materials  purchased 
for  the  benefit  of  the  estate  he  incurs  a  personal  liability.6  This  would  not 
apply  probably  to  materials  purchased  in  the  execution  of  a  building  con- 
tract of  decedent,  as  executor  or  administrator. 

At  common  law  no  action  could  be  brought  against  the  executor  or 

1  Carlyle  L.   W.   &  P.    Co.  v.   City  of      tion    between    real    and    personal    assets 
Carlyle  (111.  Sup.),  29  N.  E.  Rep.  556.  is  not  so  marked  in  considering  contract 

2  Marshall  v.  Broadhurst,  1  C.  &  J.  403.        obligations.    4  Gray's  Cases  on  Real  Prop- 
3 It  may  be  asked  why  the  word  "heir "      erty    643.      There    is    little    use  of    the 

is  employed,  as  if  it  were  possible  for  a  word,  but  it  is  and  will  be  used,  for  law- 
party  to  bind  his  heirs  to  perform  cove-  yers  are  slow  to  make  changes  in  old  and 
nants  to  build,  or  to  assume  contractual  established  forms.  Like  the  expression 
obligations,  since  the  courts  have  held  "work  and  labor"  in  the  common  counts, 
that  the  executor  is  the  one  who  is  liable  it  is  used  because  others  have  used  it,  but 
though  he  be  not  mentioned  in  the  con-  it  would  be  difficult  to  distinguish  between 
tract.  By  the  common  law  contractual  work  and  labor.  To  be  safe  and  avoid 
rights  went  to  the  executor  and  adminis-  unforeseen  complications  both  the  words 
trator  on  death  of  the  contractor,  with  all  are  used,  and  it  is  recommended  that  the 
personal  property,  choses  in  action,  etc.  word  "heirs"  be  inserted,  as  it  is  good 
His  estates  in  fee  simple  were  liable  in  the  usage.  The  reader  may  reasonably  ex- 
hands  of  the  heir  only,  for  debts  by  spe-  claim,  What  a  blessing  it  would  be  if  some 
cialty  in  which  the  heir  was  named.  4  profound  scholar  of  law  would  come  for- 
Gray's  Cases  on  Real  Property  642.  It  ward  and  explain  away  the  abundance  of 
therefore  was  necessary  that  the  heir  should  meaningless  words  that  pervade  legal 
be  named  in  the  contract,  and  that  it  should  documents,  and  expunge  the  surplusage 
be  under  seal,  if  the  owner  or  company  imposed  by  ancient  laws  and  practice  that 
would  have  any  claims  on  the  real  estate;  still  pervades  our  legal  instruments  ! 
by  which  it  is  probable  that  it  became  the  47  Amer.  &  Eng.  Ency.  Law  262  and 
custom  to  draw  construction  contracts  ns  326. 

specialties.      In  the  United  States  geuer-  b  7  Amer.  &  Eng.  Ency.  Law  326. 

ally,  a  man's  property,  real  and  personal,  *  7  Amer.  &  Eug.  Ency.  Law  299. 
is   liable   for   his   debts,  and  the  distinc- 


8  ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  13. 

administrator  for  a  tort  committed  by  the  deceased  person  whom  he  might 
represent.  The  word  "  tort "  includes  acts  of  trespass,  trover,  false  impris- 
onment, assault  and  battery,  slander,  deceit,  etc.  Under  that  law  it  has 
been  held  that  a  complaint  alleging  that  a  contractor  was  prevented  by 
owner  from  performing  work  under  his  contract  and  asking  damages  result- 
ing from  the  loss  of  profits  which  he  expected  to  make  was  an  action  in  tort, 
which  did  not  survive  the  death  of  the  owner.1  It  has  been' held  that  if  by 
reason  of  a  tort  the  estate  of  the  deceased  person  has  derived  pecuniary  profits, 
that  the  representative  could  be  compelled  to  account  to  the  party  injured.* 

13.  Assignee  of  Contractor  or  Owner.— The  word  "assigns"  is  in  common 
use  and  is  a  desirable,  though  perhaps  not  a  necessary  word.  It  should  be 
omitted  if  the  contract  is  a  contract  for  personal  skill  or  if  it  contains  a 
clause  forbidding  an  assignment,  as  it  tends  to  show  a  contrary  intention. 
An  assignee  would  probably  be  bound  without  being  named  in  the  contract, 
or  at  least  he  could  take  no  benefit  without  assuming  the  burdens.3  An 
assignment  of  a  contract  in  express  violation  of  a  positive  prohibition  is 
void,  and  the  party  claiming  through  such  an  assignment  is  entitled  to  no- 
relief  in  equity.4 

Contracts  for  the  performance  of  personal  duties  or  services  are  not  assign- 
able so  as  to  confer  the  right  upon  the  owner  to  command  the  services  or  to- 
compel  him  to  accept  performance  by  the  assignee.  One  who  has  con- 
tracted to  perform  work  which  requires  skill  and  science  cannot  impose 
another  in  his  place  without  consent  of  the  other  party. 5  If  the  contract 
is  given  to  the  contractor  because  of  his  peculiar  proficiency  and  skill  in 
executing  the  work  required  to  be  done,  then  it  can  be  assigned  only  by 
consent  of  the  parties  to  the  contract,  which  may  be  properly  established  by 
facts  and  circumstances  showing  his  assent.  Evidence  tending  to  show 
such  assent  is  admissible.8 

A  contract  for  the  erection  of  a  lighthouse  has  been  held  one  for  per- 
sonal services  which  could  not  be  completed  by  the  representatives  of  the 
contractor. 7 

The  introduction  of  the  word  assigns  in  the  instrument  may  be  e,vi- 
dence  that  the  parties  anticipated  the  possibility  if  not  the  probability  of 
its  assignment,  and  it  is  therefore  sometimes  omitted  rather  than  to  raise 
such  a  presumption.  Thus  an  agreement  or  promise  to  a  company,  its 
assigns  or  successors,  will  enable  the  assigns  and  successors  to  complete 
works  started  by  the  company,  and  to  enforce  promises  made  to  it,  when  the 
execution  of  the  work  is  the  essence  of  the  agreement.8 

'Jenkins  v.  Bennett  (S.  C.),  18  S.  E.  McCarty,  45  Mo.  106;  Bethlehem  v.  Armis, 

Rep.  929.  40  N.  H.  34;  Haskell  v.  Blair,  3  Gush. 

2 7  Amer.  &  Eng.  Ency.  Law  333.  (Mass.)  534. 

3  29  Amer.  &  Eng.  Ency.  Law  978.  6  Crawford  v.  Wolf.  29  Iowa  567  [1870]. 

J  Griggsfl.  Landis,  19 N.  J.  Eq.  350  [1868].  7  Wentworth  <o.  Cock,  10  A.  &  E.  45. 

61  Amer.  &  Ensr.  Ency.  Law  832;  Mun-  8  Michigan  M.  &  C.  R.  Co.  v.  Bacon,  35 

sell  v.  Temple,  3  ^Gillman  93;  Lansden  v.  Mich.  44(5  [1876]. 


§  Iff-]  LAW  OF  CONTRACTS.  9 

14.  What  Contracts  and  Claims  are  Assignable. — Construction  contracts 
are  in  general  assignable,  if  there  be  no  clause  contained  expressly  forbid- 
ding an  assignment,  and  if  the  statute  authorizing  the  work  does  not  pro- 
hibit it,  and  such  an  assignment   is  valid.     Any  executory  contract,  not 
necessarily  personal  in  its  character,  and  which  is  consistent  with  the  rights 
and  interests  of  the  adverse  party,  may  be  as  fairly  and  sufficiently  executed 
by  the  assignee  as  by  the  original  contractor,  if  the  contractor  has  not  dis- 
qualified himself  from  its  performance.'     A  contract  to  do  work  on  a  street 
can  therefore  be  assigned,  and  if  the  assignee  fulfills  the  conditions  of  the 
contract  he  can  enforce  it  and  recover  the  contract  price.2     The  assignment 
of  a  contract  for  cleaning  streets  is  not  against  public  policy  so  long  as  the- 
city  retains  the  personal  obligation  of  the  original  contractor  and  his  sure- 
ties,3 and  an  assignee  can  maintain  an  action  in  equity  for  a  division  of  the- 
profits  of  a  building  contract  if  he  has  performed  his  undertakings.4     A  con- 
tract to  put  on  a  gravel  roof,  to  be  done  in  first-class  shape  and  guaranteed 
for  a  certain   time,6  and  a  contract  to  drill  an  oil-well,6  have  been  held 
such  contracts  as  might  be  sublet  or  assigned,  when  it  was  not  shown  that 
the  contractor  was  specially  fitted  to  do  the  work  and  was  employed  on 
account  of  his  knowledge,  experience,  or  pecuniary  ability. 

15.  Contracts  Awarded  to  Lowest  Bidder  may  be  Assigned. — Contracts 
awarded  to  the  lowest  bidder  after  advertising  for  proposals  are  not  of  a 
personal  character,  requiring  rare  genius  or  extraordinary  skill,  but  may  be 
assigned.     The  public  are  invited  to  bid  for  and  take  these  contracts  regard- 
less of  professions,  trades,  or  occupations.     Aside  from  the  discretion  usually 
vested  in  the  board  to  reject   all   bids  when  they  deem  it  for  the  public- 
good,  or  the  bid  of  any  party  who  may  have  proved  delinquent  or  unfaithful 
in  any  previous  contract,  there  is  no  restriction  upon  the  capacity  of  the 
contractor.     He   is  not  expected  or  required  to  do   the  work  in  person. 
Whether  he  knows  anything  about  the  work,  or  can  tell   the  difference 
between  a  mud  turnpike  and  a  Nicholson  pavement,  or  whether  a  sewer 
should  be  constructed  in  the  shape  of  a  longitudinal  section  of  an  egg-shell, 
or  which  end  of  the  section  should  be  uppermost,  is  of  no  consequence,  for 
the  contract  is  not  awarded  him  because  of  his  superior  knowledge  or  skill, 
but  because  his  bid  is  the  lowest  and  his  bond  for  the  performance  of  the 
work  in  a  workmanlike  manner  and  according  to  the  specifications  is  good. 
Moreover,  by  the  terms  of  the  contract,  the  work  is  to  be  performed  under 
the  direction  and  to  the  satisfaction  of  the  engineer;  it  is  his  skill  and  genius 
therefore  which  gives  form  and  excellence  to  the  work,  and  it  is  there- 

1  Bates  v.  Lumber  Co.  (Miun.X  57  N.  W.          4 Dougherty  u.  Grouff  (Neb.),  36  N.  W. 
Rep.  218,  29  Amer.    &  Eng.  Ency.  Law       Rep.  351,  [1888]. 

978,  and  cases  cited.  6  Cuvran  v.  Clifford  (Colo.  App.),  40  Pac. 

2  Taylor  v.  Palmer,  31  Cnl.  241.  Rep.  477. 

3  Devlin  v.   Mayor  et  al.,   63  N.  Y.  8  •  Galey  v.  MelloD  (Pa.  Sup.),  33  Atl.  Rep. 
[1875];  and  see  Little  v.  City  of  Portland  560. 

(Ore.),  37  Pac.  Rep.  911. 


10          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  16. 

fore  in  his  genius   and  skill,  if  anywhere,  that  trust  and  confidence  are 
reposed. 1  * 

In  New  York  State  everything  that  could  be  transmitted  to  the  assignor's 
personal  representatives  is  assignable.  The  test  is,  whether  or  not  the  thing 
assigned  would  pass  to  the  executors  and  administrators  of  the  assignor  at 
his  death.2 

16.  What  Interest  does  an  Assignee  Take. — Where  the  assignees  of  a 
contract  to  construct  a  railroad  agree  to  save  the  assignor  harmless  from  all 
liability  by  reason  of  subcontracts  previously  let  by  him,  a  failure  to  pay 
the  amounts  due  on  such  subcontracts  is  a  breach  by  the  assignees  for  which 
the  assignor  can  recover  without  first  showing  payment  by  himself.2 

An  assignment  of  money  due  and  to  become  due  on  a  building  contract 
effects  an  immediate  and  present  transfer  to  the  assignee  of  a  right  to 
demand  and  receive  the  money  assigned  without  notice  to  the  debtor.4 

To  complete  the  assignment  notice  should  always  be  given  the  debtor  to 
establish  priority  o  claims  of  the  assignee  over  those  of  materialman,  other 
assignees,  and  creditors.  Until  informed  of  the  assignment  the  debtor  may 
regard  the  contractor  or  assignor  as  the  creditor  and  may  pay  him  and 
accept  a  release,  or  settle  the  claim  with  him,  or  purchase  a  debt  which  he 
owes  and  use  it  as  set-off.6 

When  a  contractor  assigns  his  contract  with  a  city  to  build  a  structure 
it  seems  there  is  no  implied  warranty  on  his  part  of  its  validity,  and  if  it 
turns  out  to  be  invalid  and  worthless  the  assignee  cannot  avoid  the  payment 
of  notes  he  has  given  in  consideration  of  such  assignment,  there  being  no 
misrepresentation,  concealment,  or  fraud  on  the  part  of  the  contractor.6 

The  cases  are  common  where  contractors  have  assigned  to  subcontractors,7 
and  the  latter  may  maintain  an  action  on  such  assignment,  but  subject  to 
defenses  existing  against  the  assignor  or  principal  contractor.  Moneys  not 
yet  earned,  but  expected  to  be  earned  in  the  future  under  an  existing  con- 
tract, maybe  assigned,8  as  can  the  lien  of  a  mechanic  or  materialman,9  but 
the  lien  must  have  been  perfected  first.  An  assignment  of  claims  lor  work 
done  or  materials  furnished  was  held  to  give  no  right  to  the  assignee  to  a 
lien.10  The  assignment  by  a  subcontractor  of  his  account  for  work  performed 

1  Emery  v.  Bradford,  29  C»il.  75;  Taylor  [1889];    but  see  Humphreys    v.   Jones,   5 
t>.  Palmer,  31  Cal.  240  [1886].  Excli.  952. 

2  1  Amer.  &  Eng.  Ency.  Law  832.  7  Chambers  v.  Lancaster  (Sup.),  38  N.  Y. 

3  Mills  v.  Allen,  10  Sup.  Ct.  Rep.  413.  Supn.  253:  Dirimple  v.  State  Bank  (Wis  ), 

4  Board  of  Education  v    Duquesnet  (N.  65  N.  W.  Rep.  501. 

J.  Ch.),  24  Atl.  Rep.  922;  Union  Pac.  Rv.  8  Perkins  v.  Butler  Co.  (Neb.),  62  N.  W. 

Co.  v.  Douglas  Co.  Bank  (Neb.),  60  N.  W.  Rep.  308;  Tracy  v.  Waters  (Mass.),  39  N. 

Rep.  886.  E.  Rep.  190. 

5 1  Amer.  &  Eng.  Ency.  Law  840.  9  Milwaukee     Mechanics     lus.    Co.    v. 

For  a   case  where  notice  was  given  in  Brown  (Kans.  App.),  44  Pac.  Rep.  35. 

English  to  one  who  could  not  read  English,  10Jenckes  v.  Jenckes  (Ind.  Sup.),  44  N. 

-seeRenton  v.  Monuier,  77  Cal.  449.  E.  Rep   632. 

6  Gould  v.  Bourgeois,  51  N.  J.  Law  361 

*See  Sees.  132-200. 


§17.]  LAW  OF  CONTRACTS.  11 

.as  collateral  security  does  not  defeat  his  right  to  perfect  a  mechanic's  lien 
therefor.1 

17.  Third  Parties,  Strangers,  and  Beneficiaries. — Persons  not  parties  to  a 
•contract  may  subsequently  acquire  rights  under  it  by  assignment  and  opera- 
tion of  law,  as  the  right  of  administrators,  receivers,  and  successors  in  office, 
but,  as  a  general  rule,  strangers  can  not  sue  on  a  contract.  If  the  contract, 
not  under  seal,  be  made  for  the  benefit  of  a  third  party,  it  has  been  repeat- 
edly held  that  the  third  party  can  bring  an  action  to  recover  what  he  is  fairly 
entitled  to  under  the  contract.  Evidence  may  be  introduced  to  show  that  a 
written  contract  was  made  in  behalf  of  parties  other  than  those  named,  and 
to  charge  such  other  persons.2  A  third  person,  who  is  only  indirectly  or 
incidentally  benefited  by  the  contract,  will  not  be  allowed  to  sue  upon 
it.  For  example,  a  stipulation  in  an  engineering  contract,  by  which  the 
contractor  is  to  indemnify  the  owner  for  damages,  does  not  give  to  a  party 
injured  a  cause  of  action  against  the  contractor.3  A  provision  in  a  contract 
that  a  city  may  retain  money  until  the  contractors  shall  have  paid  his  labor- 
ers, does  not  give  the  laborers  any  rights  against  the  city  when  the  contrac- 
tor has  been  paid  in  full.4 

A  provision  that  the  owner  shall  retain  a  certain  percentage  of  the  con- 
tract price  till  the  completion  of  the  work  is  for  the  benefit  of  the  owner, 
and  does  not  afford  a  ground  of  personal  liability  by  the  owner  to  sub- 
contractors.5 

The  third  party  cannot  sue  on  the  contract,  unless  it  is  perfectly  clear 
that  both  parties  to  the  contract  intended  it  for  his  benefit.  The  mere  fact 
that  the  third  party  might  be  benefited  is  insufficient.6  It  has  been  held, 
however,  that  a  bond  to  a  city  by  contractors,  providing  that  they  will  pay  for 
all  labor  and  materials  furnished,  is  a  promise  for  the  benefit  of  all  persons 
furnishing  labor  and  materials,  and  such  persons  may  sue  on  it,7  especially 
when  the  city  or  county  is  required  by  statute  to  secure  its  laborers  and 
material  men  by  a  bond  that  the  contractor  will  pay  them.8  If  the  bond  be 
to  pay  for  all  materials  furnished,  the  contractor  is  not  liable  either  under 
his  contract  or  on  the  bond  to  creditors  of  subcontractors  for  materials  fur- 
nished, and  the  contractor's  assignee  is  no  more  liable.9  It  has  frequently 

1  Ittner  D.  Hughes  (Mo.  Sup.),  34  S.  W.  'Lymanu.  Lincoln  (Neb.),  57  N.  W.  Ren. 
Rep.  1110.  531;  Kauffman  v.  Cooper  (Neb.).  65 N.  W. 

2  Ropes  v.  Arnold,  30  N.  Y.  Supp.  997.  Rep.  796 ;  St.  Louis  v.  Von  Pu-hl  (Mo.),  34 

3  French  «.  Vix  (N.  Y.  App.),  37  N.  E.  S.  W.  Rep.  843. 

Rep.  612.  Bd.  of  Ed.  v.  Grant  (Mich.),  64  N.  W. 

4 Old   Dom.  Gran.  Co.  v.  District  of  Co-  Rep.  1050;  Gilmore*).  Westerman  (Wash.), 

lumbia,  20  Ct.  of  Claims  127;  Sayre  Lumb.  43  Pac.  Rep.  345 ;  Wilson  v.  Webber  (Sup.), 

€o.  v.  Union  Bank  (Colo.  App.),  41  Pac.  36    N.    Y.    Supp.    550;      but    see    contra, 

Rep.  844;  Lawrence  v.  United  States  (C.  Buffalo  Cement  Co  v.  McNaughton  (Sup .), 

€  ),  71  Fed.  Rep.  228.  35  N.  Y.  Sunp.  45  ;  see  17  Amer.  &  En<?. 

5Steele  «.  McBurney  (Iowa).  65  N.  W.  Enoy.  Law  527-9 

Ivep.  332;  Weller  v.  Goble,  66  Iowa  113.  9  Brower    v.    Thompson    Lumber    Co. 

6  Wright  v.  Terry  (Fla.),  2  So.  Rep.  6  (Oreg.),  43  Pac.  Rep.  659. 
[1887]. 


12          ENGINEEEING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  18. 

/been  held  that  the  right  of  a  third  party  to  a  contract  to  sue  upon  it  does 
not  extend  to  the  case  of  a  contract  under  seal.1 

For  like  reasons,  a  subcontractor  is  not  liable  to  the  owner  for  negligently 
and  unskillf ully  doing  his  work  by  which  the  owner  is  injured,  there  being 
no  contract  between  them.  The  owner  should  bring  suit  against  the  prin- 
cipal contractor. 2  A  subcontractor  can  not  hold  a  company  or  proprietor  liable 
on  their  contract  with  the  principal  contractor  ;  nor  can  the  theory  that  the 
contractor  was  an  agent  of  the  company  be  a  ground  on  which  to  hold 
it  liable.3  A  wife  is  not  liable  for  a  contract  for  sinking  a  well  upon  her 
property,  made  by  the  husband  without  her  authority,  as  his  own  enterprise 
and  in  his  own  interest.4  A  third  party  is  not  liable  to  a  contractor  for 
work  done  on  the  representation,  by  the  owner  and  employer,  that  the  said 
third  party  would  pay  for  the  work,  the  contractor  never  having  communi- 
cated such  representation  to  the  third  party  nor  having  obtained  his  assent  to 
it.5  A  property  owner  on  a  street  is  not  a  party  to  a  contract  for  the  improve- 
ment of  the  street  made  between  the  contractor  and  the  superintendent  of 
the  streets  ; 6  and  where  a  city  has  entered  into  a  contract 'to  furnish  certain 
things  to  its  citizens,  the  city,  and  not  a  citizen,  is  the  proper  party  to  bring 
action  against  the  company  for  a  breach  of  such  contract.7 

Where  one  buys  at  sheriff's  sale  the  property  of  a  contractor  who  has  failed 
and,  taking  the  place  of  the  contractor,  under  a  partly  performed  building 
contract,  completed  the  work  for  him,  he  is  entitled  only  to  the  amount  which 
would  have  been  due  the  contractor,  who  had  been  overpaid  for  the  work 
already  done  by  him.8 

18.  Third  Party — Sureties. — When  the  contractor  fails  or  refuses  to  com- 
plete his  contract,  it  frequently  happens  that  the  surety  of  the  contractor 
assumes  the  contract  and  completes  the  work,  in  which  case  he  takes  the  place 
of  the  contractor,  assumes  all  the  burdens,  and  takes  the  benefits.  He  may 
be  mentioned  in  the  body  of  the  contract  as  a  party,  or  he  may  assume  the 
work  under  an  assignment  from  the  contractor,  or  by  permission  of  the  owner 
of  the  works. 

While  not  strictly  a  party  to  the  contract,  as  contracts  are  usually 
expressed,  yet  the  surety  is  frequently  the  responsible  party  behind  the  con- 
tractor, and  the  party  to  whom  the  company  or  owner  looks  for  the  ultimate 
performance  and  completion  of  the  contract.  The  contractor  is  employed  for 
his  skill  and  competence  to  do  the  work,  and  the  surety  is  regarded  as  the 
backer  who  will  see  to  it  that  it  is  completely  performed.  It  is,  therefore, 

1  3  Amer.  &  Eng.  Ency.  Law  866.   See  the  5Stidham  v    Sanford,  36  N.   Y.  Super. 

codes  of  several  states,  which  allow  actions  Ct.  341  [1873], 

when  the  common-law  practice  would  not.  6  Dyer  v.  Barstow,  50  Cal.  652  [1875], 

2Bissel  V.  Roden,  34  Mo.  63  [1864].  7  Cleburne    W.   I.  &  L.  Co.  «.  City  of 

•Blandioff  v.  Davenport  (la.),  55  N.  W.  Cleburne  (Tex.),  35  S.  W.  Rep.  733. 

Rep.    81;     Epeneter  v.    Montgomery  Co.  8  Marshall  v.  Brick  (Pa.   Sup.),  34  AtL 

(Iowa),  67  K  W.  Rep.  93.  Rep.  520. 

4Devine  v.  McMillan,  61  111.  App.  571. 


§  20.]  LAW  OF  CONTRACTS.  13 

important  that  the  relations  of  the  surety  to  the  parties  and  the  contract  be 
understood.  The  suretyship  of  a  party  is  created  usually,  not  in  the  contract, 
but  in  a  separate  instrument,  called  a  bond.  Frequently  there  is  no  mention 
of  the  surety  in  the  contract,  yet  upon  the  execution  of  the  contract  may 
•depend  the  binding  effect  of  the  bond. 

19.  Third  Parties,  Sureties  are  Not  Liable  to  Them.— If  the  bond  guaran- 
ty that  the  contractor  shall  pay  for  all  labor  and  materials  furnished  him 
in  executing  the  contract,  it  seems  that  laborers  and  materialmen  have  cer- 
tain rights.1     A  contract  of  guaranty  that  a  contractor  should  perform  his 
•contract  to  erect  buildings,  and  to  pay  for  the  materials  and  labor  so  that 
there  should  be  no  liens,  does  not  give  a  materialman  a  right  to  sue  the 
guarantor.2  *     Sureties  on  a  bond  conditioned  that  the  building  should  be 
turned  over  to  the  owner  free  from  all  liens  for  labor  and  materials,  are  not 
liable  for  labor  and  materials  furnished  to  the  contractor  and  subcontractors 
on  their  individual  credit.3       A  surety  on  a  bond  conditioned  that  the  con- 
tractor shall  pay  all  debts  incurred  by  the  contractor  is  not  liable  to  subcon- 
tractors for  labor  and  materials  furnished.4     For  a  creditor  of  the  contractor 
to  recover  from  the  surety,  it  must  appear  that  the  creditor  knew  of  the 
.agreement  on  the  part  of  the  surety  to  pay,  before  he  performed  the  work  or 
furnished  the  materials.5     In  other  words,  he  must  have  trusted  the  contrac- 
tor on  account  of  or  by  reason  of  the  additional  security. 

20.  Surety   Released   by  Unauthorized    Changes   in   the    Contract. — A 
surety  is  one  who  has  assumed  certain  obligations  in  relation  to  a  contract 
but  who  is  not  a  party  to  the  contract.     He  is  bound  in  the  manner  and  to 
the  extent  provided  in  the  obligation  and  no  further.     If  he  has  under- 
taken to  guaranty  the  performance  of  an  express  contract  under  certain 
circumstances,  he  cannot  be  held  to  fulfill  his  obligation  with  respect  to  a 
different  contract  or  under  different  circumstances.     A  variation  or  altera- 
tion made  in  the  contract  by  the  parties  thereto  without  the  surety's  con- 
sent is  fatal  to  his  obligation/     It  is  not  necessary  that  he  should  sustain 
iDJury  in  consequence  of  the  change;  he  may  stand  upon  its  terms,  and  if  a 
change  is  made  without  his  consent  it  is  fatal  to  his  liability,7  even  if  the 
change  is  for  the  benefit  of  the  surety.8 

1  Doll  v.  Cruine  (Neb.),  59  N.  W.  Rep.  Watriss  v.  Pierce,  32  N.  H.  550;  Gen'l  St. 

806.  NHV.  Co.  v.  Rolt,  6  C.  B.  (N.  S.)  550. 

*  Weller  v.  Goble,  66  Iowa  113-,  accord  7  Simonson  v.  Thori  (Minn.),  31  N.  W. 

Stetson  v.  McDonald,  32  Pac.  Rep.  108;  Rep.  861  [1887]:  Berks  Co.  v.  Ross,  3  Binu. 

•see  also  Kelly  v.  Kellogg,  79  111.  477;  Me-  (Pa.)  520  ;  24  Anier.  &  Eng  Ency.  Law 

Chesney  v.  Syracuse,  22  N.  Y.  Supp.  507  ;  838  ;  29  Amer.  &  Eng.  Ency.  Law  796; 

and  Bell  v.  Paul  (Neb.),  52  N.  W.  Rep.  but  see  contra,  Haone  v.  Dambach,  4  Pa. 

1110.  Co.  Ct.  Rep.  833;  Commissioners,  etc.,  v. 

3  Stetson   v.   McDonald,    McChesney   v.  Ross,  3B5nuey  (Pa.)  520;  Miller  v.  Stewart, 
Syracuse,  Bell  v.  Paul,  supra.  4  Wash.   C.  C.  26 ;  per  Story  in  Miller  v. 

4  Swindler  v.  State  (Ind.  App.),  44  N.  E.  Stewart,  9  Wheat.  680  [18241. 

Rep   60.  »  Weir  Plow  Co.  v.  Walmslev,  110  Ind. 

'Ball  v.  Newton,  7  Gush.  (Mass.)  599.  242;    but   see    Hamilton    v.     Woodworth 

6  St.  Albaus  Bk.  v.  Dillon,  30  Vt.  122;      (Mont.),  42  Pac.  Rep.  849. 

*  See  Sec.  71,  infra. 


14          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE-    [§  20. 

A  departure  from  the  terms  of  the  contract  by  making  payments  on 
orders  of  the  contractor  without  reference  to  the  state  of  the  work  or  the 
terms  of  the  contract,  or  in  excess  of  the  installments  or  percentage  due 
under  the  contract,  is  sufficient  variation  to  discharge  surety  from  his 
obligation.1  The  provision  that  the  last  of  several  installments  shall  be 
paid  when  the  structure  is  completed  operates  as  a  security  to  the  owner,, 
and  the  surety  is  entitled  to  the  benefit  thereof.  If  deprived  of  any  part 
of  such  security  he  is  discharged  from  liability  to  that  extent.8  The  con- 
tractor should  not  be  overpaid  nor  should  his  compensation  be  increased.3 

The  enforced  payment  or  deduction  of  claims  of  creditors  against  the 
contractor  held  by  the  owner  as  attorney  for  said  creditors  is  not  such  a 
breach  of  contract  as  will  release  the  sureties  on  the  contractor's  bond.4  It 
does  not  matter,  it  seems,  that  the  overpayment  was  made  on  the  fraud- 
ulent representations  of  the  contractor  that  the  work  was  half  done,  when 
the  contract  provides  that  the  payments  shall  be  estimated  by  the  engineer. 
The  sureties  are  discharged.5  If  the  contrast  stipulates  that  payments- 
shall  be  made  as  the  work  progresses,  on  the  estimates  of  the  architect,  pay- 
ments must  not  be  made  without  such  estimates  or  in  excess  of  them,  with- 
out the  consent  of  the  surety.6  The  payments  maybe  made  without  the 
architect's  certificates,  it  seems,  if  not  in  excess  of  what  the  architect's 
estimates  would  hare  been.7 

If  by  the  contract  the  architect's  estimate  is  made  conclusive  and  a  certain 
per  cent,  of  such  estimate  is  reserved  until  completion,  it  is  as  much  for  the 
Indemnity  of  the  surety  as  for  the  owner.  If  the  surety  has  executed  a 
written  guaranty  for  the  faithful  performance  of  the  contract  by  the  con- 
tractor, the  surety  is  bound  by  the  engineer's  estimate,  and  is  not  released  by 
the  fact  that  the  owner  has  paid  more  than  the  agreed  per  cent,  of  the  work 
done  according  to  the  contract  price,  but  not  more  than  the  correct  per  cent, 
of  the  architect's  estimate.8 

However  it  has  been  held  that  the  making  and  giving  to  a  material- 
man  of  an  order  by  the  contractor,  and  the  acceptance  of  the  same  by  the 
owner,  for  an  amount  greater  than  the  estimate  of  amount  due  to  con- 
tractor, did  not  constitute  an  advance  payment  which  would  release  the 
surety.9 

1  Simonson  v.  Grant, 36  Minn.  439  [1887]  ;  5  Board  of    Commissioners  v.  Branham 

and  see  39  Minn.   493  ;  Evans  v.    Graden  (C.  C.),  57  Fed.  Rep.  179. 

(Mo.),    28  S.  W.   Rep.  439;  Bell    v.  Paul  6  Bell  v.  Paul   (Neb.),   52  N.  W.  Rep. 

(Neb.),   52  N.  W.  Rep.   1110;  General  8.  1110;  Kane  «.  Thuener,  1  Mo.  App.  725; 

Nuv.    Co.   v.   Ro't,  6  C.  B.    (N.  S.)  550;  Gato  fl.Warrington  (Fla.),  19  So.  Rep.  883, 

Gordon  v.   Rae,  8  El.  &  Bl.  1065;  but  see  receipted  weekly  pay-rolls  and  materials  de- 

Kauifman  v.  Cooper  (Neb.),  65  N.W.  Rep.  livered. 

796.  7  Smith  v.  Molleson  (N.  Y.  App.),  42  N. 

*  Pickard  v.  Schantz  (Miss.),  12  So.  Rep.  E.  Rep  669  ;  but  see  Brennau  v.  Clarke,  29 

544.  Neb.  385. 

3  Warden  V.  Ryan,  37  Mo.  App.  466.  8  Finney  v.  Condon,  86  111.  78  [1877]. 

4  DeMattos  v.  Jordan  (Wash.),  46  Pac.  9  De  Mattos  v.  Jordan  (Wash.),  46  Pac. 
Rep.  402.  Rep.  402. 


§  20  j  LAW  OF  CONTRACTS.  15 

When  the  obligation  of  the  contractor  was  to  furnish,  prepare,  and  set 
granite,  and  the  owner  was  to  make  monthly  payments  of  a  certain  per 
cent,  of  the  estimated  value  of  the  work  "  performed  on  the  building,"  pay- 
ment for  granite  prepared  as  well  as  granite  actually  put  in  the  building 
was  held  not  to  release  the  contractor's  sureties.1 

Payment  in  full  to  a  contractor  upon  completion  of  his  contract,3  or 
partial  payments  when  the  work  has  been  substantially  completed  to  the 
required  stages,3  or  payment  to  contractors  who  have  fraudulently  concealed 
defective  work,4  will  not  discharge  a  surety  even  though  the  owner  paid  the 
contractor  without  retaining  enough  to  cover  the  claims  of  lienmeu,  when 
his  contract  authorized  him  to  do  so.5 

Many  changes  made  in  a  construction  contract  for  a  consideration  and 
without  the  consent  of  the  surety  have  been  held  to  discharge  or  release  him 
from  liability — thus  an  extension  of  the  time  for  completion.6  To  obtain 
his  discharge  the  surety  must  plead  the  extension  in  his  answer  and  he  must 
prove  it  at  the  trial.7  It  has  been  held  that  an  extension  of  time  and  over- 
payment did  not  release  a  surety  on  a  bond  providing  that  the  contractor 
should  pay  for  all  labor  and  materials  furnished  him,  as  to  the  rights  of  labor- 
ers and  rnaterialmen.8  The  extension  of  time  of  payment  must  be  for  a 
definite  time,  and  on  a  sufficient  consideration  to  discharge  the  surety.* 
The  act  of  materialmen  in  allowing  a  contractor  thirty  days  in  which  to 
pay  for  materials  furnished  does  not  release  a  surety  obligated  to  pay  for  all 
materials  furnished.10 

Failure  of  the  owner  to  insure  property  as  agreed,11  or  a  change  in  the 
person  of  the  architect  without  the  surety's  knowledge  or  consent; 12  or  a 
refusal  by  the  owner  to  have  the  price  of  alterations  fixed  as  provided  in  the 
contract,  by  arbitrators;  13  or  if  certain  matters  are  to  be  determined  by  arbi- 
tration and  certain  other  matters  are  afterwards  included  in  the  submission 
without  the  knowledge  or  consent  of  the  surety,14  then  the  surety  may  be 
discharged. 

Sureties  are  released  by  a  departure  from  the  terms  of  the  contract  in 
respect  to  plan  and  materials,  without  the  knowledge  and  consent  of  the 

1  Smith  v.  Molleson  (N.  Y.  App.),  42  N.  165  ;  but  see  Hanks  v.  Gerbracht,  26  N.  Y. 
E.  Hep  669.  Supp.  1097. 

2  Duluth  v.  Heney,  43  Minn.  155.  8  Doll  v.  Crime  (Neb.),  59  N.  W.  Rep. 

3  Stimson  Mill   Co.   •».   Riley  (Cal.),  42  806 ;  Conu  v  State,  125  Ind.  514  ;  Steifes 
Pac.  Rep.  1072.  v.  Lemke,  40  Minn   27. 

••Kingston    v.    Harding,    2  Q.    B.    404  9  Houston  v  Braden  (Tex.  Civ.  App.),  37 

[1892].  S.  W.  Rep.  467. 

6  Casey  v.  Gun,  29  Mo.  App.  49.  10  Wilson  v.  Webber  (Sup.),    36  N.  Y. 

•Todd  «.   School  Dist.,  40  Mich.  294;  Supp.  550. 

and  see  61  Mich.  426;    Hall  v.  Johnston  "  Watts  v.  Shuttleworth.  5  H.  &  N  235. 

(Tex.).    24  S.    W.    Rep    861;   Samu<  11  v.  12  Kanei).  Thuener,  1  Mo.  Apn.  Rep.  725. 

Howarth.    3  Mer.    Ch.    272;   Hill  v.  Wit-  13  Truckee  Lodge  v.  Wood,  14  Nev  293. 

mer,  2  Pbila.  (Pa.)  72;  Mayhew  v.  Cricket,  u  Cooke  v.  Odd  Fellows  (Sup.),  1  N.  Y. 

2  Swanst.  Ch.  185.  Supp.  498. 

1  Hayden  v.  Cook  (Neb.),  52  N.  W.  Rep, 


16          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  21 

surety.1  An  agreement  between  the  owner  and  contractor  to  add  another 
story  to  a  building;2  to  substitute  steam  heat  for  stoves  and  a  gravel  roof 
for  a  tin  roof;  3  to  increase  the  cost  of  plastering  by  $221,  and  adding 
to  the  expense  a  bulkhead  for  sewer  connections,  and  changing  the  arrange- 
ments of  the  closets;4  an  interlineation  in  the  specifications  and  addition 
of  the  words,  "sliding  doors  between  hall  and  parlor"  and  " bath-room,"  & 
have  each  been  held  to  release  the  surety  on  the  contractor's  bond. 

An  agreement,  endorsed  on  a  building  contract  by  the  owner  and  con- 
tractor, providing  for  additional  work  for  additional  compensation,  has  been 
held  not  such  an  alteration  of  the  contract  as  will  release  the  contractor's 
sureties.6  A  surety  for  a  subcontractor  between  him  and  the  contractor  is 
not  released  by  changes  made  in  the  specifications  and  plans  by  the  sub- 
contractor under  an  agreement  with  the  owner  and  without  the  knowledge 
of  the  contractor; 7  and  alterations  without  the  knowledge  or  consent  of  the 
owner  will  not  discharge  the  surety  on  the  bond.8  If  the  contractor  simply 
consent  to  certain  changes  in  the  minor  details  of  the  work  but  without 
binding  himself  to  conform  to  such  changes  and  without  any  agreement  as 
to  the  modification  of  the  original  contract,  it  will  not  discharge  the  surety.8 
Such  agreements  to  change  the  terms  of  a  contract,  by  which  the  surety  will 
be  discharged,  need  not,  it  seems,  be  in  writing  nor  in  any  precise  form  of 
words,  nor  even  in  express  language;  they  may  be  inferred  from  acts, 
declarations,  circumstances,  and  facts.10 

If  the  contract  provide  that  the  contractor  should  make  any  alterations 
or  additions  required  by  the  owner,  the  price  to  be  subject  to  addition  or 
deduction  therefor  as  might  be  agreed  on,  the  sureties  cannot  defend  against 
liability,  because  the  owner,  in  completing  the  building  after  its  abandon- 
ment by  the  contractor,  as  was  authorized  by  the  contract,  deviated  from 
the  specifications,  nor  because  changes  were  made  before  the  abandonment 
with  the  assent  of  the  contractor.11 

21.  Changes  which  Will  Not  Release  the  Surety. — When  the  contract 
provides  that  the  owner,  at  any  time  during  the  progress  of  the  work,  shall 
have  the  right  to  make  alterations,  changes,  or  additions  to  the  structure, 
and  that  the  same  shall  not  invalidate  the  contract ;  changes  and  additions 
made  by  him  will  not  release  the  surety  on  the  contractor's  bond.12  If 

1  Erickson  i>.  Brandt  (Minn.),  55  N.  W.  s  Consaul  v.  Sheldon  (Neb.),  52  N.  W. 
Hep.  62.  Rep.  1104. 

2  Judah  v.  Zimmerman,  22  lad.  388.  '  Henricus  0.  Englert,  supra. 

3  Evans  v.  Gradeii  (Mo.),  28  S.  W.  Rep.  10  Brooks-0.  Wright  (Mass.),  13  Allen  72; 
439.  Mil  er  v.  Stewart,  4  Wash.  C   C.  26. 

4  Beers  v.  Stvimple  (Mo.  App.),  22  S.  W.  n  De  Mattos  v.  Jordan  (Wash.),  46  Pac. 
Rep.  620.  Rep.  402. 

5  Lancaster  v    Barrett,  1  Pa.   Sup     Ct.  12Hayden0  Cook,  34  Neb.  670;  Moore  v. 
Rep.  9.  Fountain   (Miss.),  8  So.   Rep.  509  [1891]; 

6  Barclay  v.    Alsip  (Pa.  Sup.),  24   Atl.  Smith  v.   Molleson  (N.  Y.  App.),  42  N. 
Rep.  1067.  E.  Rep.   669;   McLennan  v.   Wellington, 

1  Henricus  *.  Euglert  (N.  Y.  App.),  33     48  Kans.  756. 
2*.  E  Rep.  550. 


§  22.]  LAW  OF  CONTRACTS.  17 

the  owner  refuses  to  have  the  prices  of  such  changes  determined  in  the 
manner  provided  by  the  contract,  then  the  sureties  will  be  released.1  The 
changes  must  be  reasonable,  and  not  materially  increase  the  cost  of  the 
structure  beyond  the  contract  price.2  A  change  in  the  plan  of  a  building 
by  moving  the  wall  out  two  inches,  and  in  the  specifications  by  substitut- 
ing walnut,  cherry,  and  poplar,  instead  of  pine,  in  certain  parts  of  the  build- 
ing, has  been  held  reasonable,  and  that  the  sureties  were  not  released  by 
reason  thereof.3  A  change  from  stone  window-lintels  to  railroad  iron  has 
been  held  not  to  affect  the  obligation  of  the  surety,4  nor  a  change  of  the 
fronting  of  a  building  when  the  sureties  had  never  seen  the  original  plans.5 

When  the  contract  provides  that  no  new  work  shall  be  considered  as 
extra  work  unless  a  separate  estimate  be  submitted  by  the  contractor,  and 
signed  by  the  engineer  and  owner,  and  that  only  such  work  shall  be  paid  for 
as  has  been  authorized  in  writing,  the  owner  may  waive  compliance  with  the 
provision,  and  the  sureties  on  the  contractor's  bond  have  been  held  not  to 
be  discharged  because  the  provision  had  been  disregarded.6  A  different 
view  seems  to  have  been  taken  where  the  contract  provided  that  the  super- 
intendent might  make  alterations  without  invalidating  the  contract;  that 
any  difference  in  the  expense  should  be  determined  by  him,  and  that  in  case 
of  any  such  alteration  the  expense  must  be  agreed  on  in  writing,  and  signed 
by  said  parties  and  the  superintendent  before  the  work  was  done,  and  any 
allowance  made  therefor;  it  was  held  that  the  superintendent  had  no 
authority  to  make  alterations  without  consulting  the  surety.7  A  surety  for 
the  owner  has  been  held  to  be  entitled  to  the  benefit  of  a  provision  in  the 
contract  that  the  final  payment  shall  not  be  paid  until  thirty  days  after  the 
work  is  completed,  and  only  on  the  certificate  of  the  engineer.8 

22.  Surety  Discharged  by  Other  Causes. — A  surety  may  be  discharged 
from  his  obligation  by  the  death  of  the  contractor;  but  where  the  con- 
tractors make  a  partnership,  the  dissolution  of  the  partnership  does  not  re- 
lease the  surety  on  a  bond  to  pay  for  all  labor  and  materials  furnished,8  nor 
-does  the  assignment  of  one  contractor  to  the  other  joint  contractor  without 
notice  to  the  surety  release  him.10  The  fact  that  the  performance  of  the 
contract  has  become  impossible,  without  any  neglect  or  fault  of  the  con- 
tractor, will  release  the  sureties.  An  instance  of  the  latter  case  is  where 
the  particular  subject-matter  is  dead,  or  has  been  destroyed,  and  cannot  be 
rebuilt  or  replaced,  as  the  delivery  of  an  animal  which  has  died.11 

'Truckee  Lodge  tj.  Wood,  14  Nev.  293.  App.),  42  N.  E.  Rep.  669. 

2Consaul  v.  Sheldon  (Neb  ),  52  N.  W.  7  Beers  v.  Strimple  (Mo.),  22  S.  W.  Rep. 

Hep.  1104.  620. 

3McLennaD    v.   Wellington    (Kan.),   30  8Beharrell  «.  Quimby  (Mass.),  39  N.  E. 

Pac.  Rep.  183.  Rep.  407. 

"Howard  Co.  v.  Baker  (Mo.),  924  S.  W.  9Kauffman  v.  Cooper  (Neb.),  65  N.  W. 

Hep.  200.  Rep.  796. 

6  Dorsey  v.  McGee,  30  Neb.  657.  10  Abbott  v.  Morrissette,  46  Minn.  10. 

•Consaul  u.   Sheldon  (Neb.),  52  N.  W.  »  Steele  v.  Buck,  61  Ills.  343  11871]. 
1104;   semble,   Smith  v.   Molleson  (N.  Y. 


18          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  23, 


PERSONS   AS   PARTIES. — WHO    MAY   CONTRACT^ 

23.  Disabilities  to  which  Persons  are  Subject. — The  rights  of  parties  to 
enter  into  and  enjoy  the  rights  of  a  contract  are  modified  by  the  special 
condition  or  status  of  the  parties.     Natural  persons   may  be  affected  by 
various  private  conditions:  such  as  infancy,  marriage,  and  conditions  affect- 
ing the  mind,  or  by  their  political  and  social  status;  while  the  powers  of 
artificial  persons,  known  as  corporations,  are  defined  and  limited  by  the  law 
of  their  creation.     The  extent  of  the  latter  must  be  sought  in  the  act  of 
sovereign  power,  by  which  they  exist.     The  incapacities  created  by  the  pri- 
vate conditions  of  persons  are  subjects  of  greater  practical  importance  than 
those  of  the  political  and  social  standing  of  the  parties.1 

They  are  based  upon  the  fundamental  principle  that  a  contract  cannot 
be  created  unless  there  is  mutual  consent  of  the  parties  and  an  intelligent 
understanding  of  its  terms.  Any  mental  infirmity  of  either  or  both  parties 
that  precludes  the  possibility  of  a  just  apprehension  of  the  terms  of  the 
agreement,  or  of  an  intelligent  assent  to  them,  destroys  one  of  the  essential 
elements  of  a  contract.2 

24.  Infants. — Persons   under    twenty-one,  and,  in  some  states,  women 
under  eighteen  years  of  age,  commonly  known  as  infants,  are  regarded  by 
the  law  as  lacking  in  judgment  and  understanding  sufficient  to  enable  them 
to  guard  their  own  interests,  and  the  law  protects  them  against  their  own 
improvidence,  or  the  designs  of  others,  by  allowing  them  to  avoid  acts,  con- 
tracts, or  conveyances  to  which  they  are  parties,  and  that  are  not  manifestly 
to  their  interests.     Before  that  age  the  law  presumes  their  faculties  to  be 
immature  and  incompetent,  and  seeks  to  guard  against  the  artifice  and  cun- 
ning of  the  world.     This  protection  is  afforded  by  allowing  them  certain 
privileges  of  avoiding  their  acts  and  agreements,  or  by  declaring  them  void- 
able and  not  binding.     The  privileges  are  entirely  personal,  and  the  infant 
alone  can  take  advantage  of  them.     If  the  other  party  to  the  contract  be 
an  adult,  the  reason  which  permits  the  infant  to  escape  its  force  does  not 
apply  to  the  adult,  and  he  is  bound  thereby,  despite  the  want  of  reciprocal 
responsibility  on  the  infant's  part.     The  adult  is  bound  by  the  agreement, 
though  the  infant  may  avoid  it.     This  may  not  seem  strict  justice,  but  it  is 
founded  upon  the  theory  that  the  adult  has  entered  into  the  contract  with 
all  the  experience  and  knowledge  requisite  to  avoid  fraud  and  imposition, 
which  it  is  presumed  the  infant  has  not.     For  the  same  reason  a  third  per- 
son not  a  party  to  the  contract  cannot  take  advantage  of  the  infancy  of  one 
of  the  parties  to  avoid  it  unless  it  be  void  from  the  beginning. 

An  infant's  contract  is  not  necessarily  void  and  without  binding  force; 
some  contracts  are  voidable  at  the  option  and  discretion  of  the  infant,  and 

!Leake's  Digest  of  Contracts,  p.  537.  2  Story  on  Contracts,  chap.  2. 


§  25.]  LAW  OF  CONTRACTS.  W 

others  are  binding.  If  the  agreement  be  positively  injurious '  to  him,  and 
can  only  operate  to  his  prejudice,  it  is  absolutely  void,  for  it  is  self-evident 
that  unfair  advantage  and  influence  has  been  exercised  over  him.  Such  is 
a  bond  executed  by  him  as  a  surety. 

Contracts  that  are  for  his  benefit  may  be  affirmed  or  avoided  by  him 
when  he  arrives  at  age,  when  he  is  presumed  to  have  arrived  at  years  of  dis- 
cretion. Executory  contracts  of  an  infant  are  generally  voidable,  and  he 
may  refuse  to  perform  during  infancy,  or  disaffirm  them  when  he  becomes 
of  age,  and  leave  the  other  party  without  remedy.  But  if  a  contract  is  com- 
pletely executed,  and  it  is  beneficial  to  the  infant,  and  was  entered  into  in 
good  faith,  the  infant  cannot  rescind  it  unless  he  can  restore  what  he  has 
received  and  put  the  other  party  in  the  same  position  that  he  occupied  be- 
fore the  contract.  An  infant  is  also  liable  for  the  fair  value  of  necessaries 
supplied  to  him,  not  on  his  express  contract,  but  on  a  contract  implied  by 
law,  which  gives  a  reasonable  price  to  those  who  furnish  necessaries,  "  since 
an  infant  must  live,  as  well  as  a  man."2 

Though  an  infant  may  not  contract  for  himself,  he  may  act  as  agent  for 
{mother,  and  his  acts  are  as  binding  upon  the  principal  as  an  adult's.3  He 
cannot  appoint  an  attorney,  nor  sue  or  be  sued,  except  by  next  friend  or 
guardian,  and  in  general  has  no  legal  capacity  to  act  for  himself.4  An  in- 
fant is  liable  for  injuries  to  property  or  persons  wrongfully  committed  by 
him.  As  is  often  said,  "  his  privilege  of  infancy  is  given  to  him  as  a  shield, 
and  not  as  a  sword."  He  is  not,  however,  liable  for  the  evil  consequences 
of  a  breach  of  contract.5 

25.  Imbeciles,  Inebriates,  and  Lunatics.— For  the  same  general  reasons 
a  contract  made  by  an  idiot,  a  lunatic,  or  drunkard  may  be  avoided  in  the 
same  ways  as  those  recited  for  infants,  if  it  can  be  proved  that  the  party  is 
incapable  of  reasoning  and  judging  of  what  is  for  his  benefit.  Much 
that  has  been  said  of  the  infant  may  be  repeated  for  them.  Their  con- 
trasts are  voidable  only  and  may  be  ratified  upon  their  returning  to  reason. 
If  a  person  has  agreed  to  sign  a  contract  when  sober,  the  fact  that  he  was 
intoxicated  at  the  time  he  did  sign  it  will  not  excuse  him  from  liability. * 
And  the  contract  of  an  habitual  drunkard  is  good  if  made  in  a  sober  inter- 
val.7 

"  Mere  weakness  of  mind  is  no  ground  for  incapacity,  and  does  not  afford 

1 A  later  doctrine  exists  that  all  contracts  4 Bobbins  v.  Mount,  33  How.  Pr.  24  [1867], 

of  an  infant  are  voidable  which  relieves  the  5 10  Amer.  &  Eng.  Ency.  Law  674-8. 

court    of    the  responsibility  of  deciding  'Page  v.  Kreky  (Sup.),  17  N.  Y.  Supp, 

what    is  necessarily,  injurious  to  the  in-  764  [1892]. 

fant.     10  Amer.  &  Eng.  Ency.  Law  628  'Hitters'  Appeal,  9  P.  F.  Sm.  9:  Caulkins 

etseq<  v.  Fry,  35  Conn.  170;  Evans  v.  Horan,  52 

2  Story  on  Contracts  103-130.   As  to  what  M.  D.  602;  Wait  v.  Maxwell,  5  Pick.  217; 

are  and  what  are  not  necessaries  is  some-  Elston  v.  Jasper,  45  Texas  409;  Brecken- 

times  a  nice  question,  not  perfectly  well  ridge  v.  Ormsby,  1  J.  J.  Marsh.  236.     For 

settled.  more  about  the  insane,  or  idiots,  see  Pollock 

3 1  Amer.  &  Eng.  Ency.  Law  334.  on  Contracts,  p.  419,  and  notes. 


20          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  25. 

sufficient  ground  for  setting  aside  a  contract,  but  it  may  support  an  infer- 
ence of  fraud  and  unfair  practice  when  the  contract  is  entirely  to  the  disad- 
vantage of  the  weaker  party.  A  contract  obtained  by  fraud  will  be  void  in 
.any  case,  whatever  be  the  comparative  intelligence  of  the  parties,  but  a 
.court  of  equity  will  set  aside  a  contract  where  it  is  evident  that  advantage 
has  been  taken  of  a  weak-minded  person,  when  it  would  not  give  relief  to 
the  same  contract  between  parties  of  sound  understanding."  As  in  the  case 
of  an  infant,  if  the  mind  of  one  party  had  become  impaired  by  age,  the  con- 
tract ic  none  the  less  operative  against  the  other  party  if  the  latter  be  in  full 
possession  of  his  faculties.1 

The  ground  of  relief  in  all  these  cases  is  based  upon  two  principles: 
First,  that  of  mutuality — a  capacity  to  comprehend  the  agreement  into 
which  they  have  entered,  and  an  understanding  of  the  terms  of  the  agree- 
ment; secondly,  that  no  fraud  be  practised  or  unlawful  advantage  be  taken 
of  either  party.  This  protection  is  given  to  all  parties,  infants  or  adults, 
sane  or  insane,  intelligent  or  idiotic,  sober  or  drunk,  and,  in  the  language  of 
a  prominent  English  jurist,  "it  is  unaccountable  that  a  man  shall  not  be 
able  to  excuse  himself  by  the  visitation  of  heaven,  when  he  may  plead 
duress  from  men  to  avoid  his  own  acts."  Justice  will  not  permit  the  strong 
to  take  advantage  of  the  weak.  It  is  sufficient  to  invalidate  any  contract  if 
it  clearly  appear  that  the  party  contracting  did  not  at  the  time  understand 
what  he  was  about. 

Intoxication  may  afford  relief  from  a  contract  only  when  the  party  is  so 
drunk  that  he  cannot  exercise  his  judgment.  It  must  be  so  excessive  and 
absolute  as  to  suspend  the  reason.  "The  merriment  of  the  cheerful  cup, 
ivhich  rather  revives  the  spirits  than  stupefies  the  reason,  is  no  hindrance  to 
the  contracting  of  just  obligations."  If  the  lunatic  contract  during  a  lucid 
period,  or  the  idiot  when  his  reason  is  restored,  or  a  drunkard  when  he 
knows  what  he  is  about,  the  contract  may  be  established,  and  will  be  sus- 
tained.2 

Many  fine  questions  arise  upon  this  subject  upon  which  volumes  have 
been  written — questions  as  to  what  constitutes  a  ratification  or  new 
promise  of  an  infant  at  his  maturity,  what  are  necessaries,  what  degree  of 
weak-mindedness,  or  insanity,  or  intoxication  will  afford  relief,  etc.,  but 
they  are  too  cumbersome  to  treat  at  length  in  this  work.8 

Generally  speaking,  each  and  all  are  liable  for  necessaries  furnished  in 
good  faith,  and  on  executed  contracts.  To  escape  liability  they  must  restore 
to  the  other  party  what  they  have  received  on  the  contract.  If  a  contract 
shows  on  its  face  good  judgment  on  the  part  of  the  imbecile  as  a  shrewd 

1  Harmon  «.  Harmon  (Cir.   Ct.),  51  Fed.      &  Eng.  Ency.  Law  (subject*).  Pollock  on 
Rep.  113.  Contracts,  Leake's  Digest  of  Law  of  Con- 

2S^Sandsfl.  Potter  (111.  Sup.),  46  N.  E.      tracts,  and    other  standard  works  on  the 
Hep.  282.  subject. 

2  See  Story  on  Contracts,  Part  2;  Amer. 


§  26.]  LAW  OF  CONTRACTS.  21 

bargain,  and  it  is  to  his  benefit,  the  rule  ought  not  to  apply.  Parties  who' 
have  been  adjudged  insane  or  idiotic  by  a  court  and  a  guardian  has  beent 
appointed,  are  wholly  incapacitated  from  contracting,  and  contracts  entered! 
into  by  them  are  void.1  To  enforce  a  contract  with  a  person  habitually 
insane  there  must  be  proof  that  the  same  person  was  sane  and  capable  of 
contracting  at  the  time  of  the  transaction.9 

26.  Married  Women. — At  common  law  a  married  woman  could  not  con- 
tract, sue,  or  be  sued  in  her  own  name.     To  prevent  domestic  discord  and 
create  a  legal  unity,  the  will  of  the  husband  was  made  paramount.     Man 
and  wife  were  regarded  as  one  person  in  their  legal  status,  and  whatever  a 
married   woman   did   her   husband  should  join   in  it.     The  common  law 
still  prevails  in  some  parts  of  the  United  States,  but  in  most  states  it  is 
modified  by  statutes,  which  are  so  different  in  the  several  states  that  it  is 
thought  inadvisable  to  attempt  to  discuss  them.    Suffice  it  to  say  that  a  mar- 
ried woman  should  not  be  made  a  party  to  a  contract,  without  the  statutes 
of  the  state  expressly  grant  the  power  to  contract,  independent  of  her  hus- 
band, and  then  the  requirements  of  the  statute  should  be  carefully  studied  and 
explicitly  followed.     Much  trouble  and  loss  have  been  experienced  by  con- 
tractors by  neglecting  to  inquire  into  the  marital  relations  of  parties  and 
the   law   governing  them,  peculiar    to    the    jurisdiction.     Contracts  have^ 
been  made  and  structures  erected  for  which  no  recovery  could  be  had,, 
because  the  contract  was  void  or  the  structure  has  been  erected  upon  land 
owned  by  the  wife  when  the  husband  has  assumed  the  obligation  to  pay. 
For  like  reasons  it  has  been  held  that  a  woman  cannot  contract  with  her 
husband,  and  such  contracts  have  generally  been  held  not  binding.     In  the* 
absence  of  a  statute  giving  such  authority,  the  legal  incapacity  to  contract- 
remains  as  at  common  law.     At  common  law  a  contract  or  promissory  note- 
between  husband  and  wife  was  absolutely  void.8     And  the  same  has  been, 
held  in  New  York  state,  where  no  statute  had  been  passed  as  late  as  1889, 
But,  although  contracts  between  husband  and  wife  are  invalid  in  a  court  of: 
law,  courts  of  equity  may  give  effect  to  agreements  and  transactions  between; 
them  so  far  as  they  are  just  and  fair  and  equitable  and  ought  to  be  enforced^ 
The  agreement  should  not  be  voluntary,  but  should  be  for  some  considera- 
tion.1    The  difficulty  doubtless  has  been  that  such  contracts  could  not  be; 
enforced,  as  the  courts  would  entertain  no  action  on  them.     The  law  has", 
been  modified  in  many  states. 

A  woman  may  employ  her  husband  to  act  as  her  agent  to  transact  any  andi 
all  of  her  business,  and  it  has  been  held  that  she  might  contract  with  hinn 
to  do  all  her  work  ;  that  she  could  contract  with  him  for  the  construction* 
of  a  building  or  any  part  of  it  for  a  stipulated  price  and  by  the  job.  If  he- 
employed  subcontractors  to  perform  the  work  he  had  undertaken,  it  wa& 

1 11  Amer.  &  Eng.  Ency.  Law  134.  and  cases  cited. 

'Ricketts  v.  Jolliff,  62  Miss.  440  [1884].          4  Hendricks    v.    Isaacs,    117  N.  Y.   411 

s  Kueil  v.  Egleston,  140  Mass.  202  [1885J,       [18891. 


22          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  27. 

intimated  that  the  subcontractor  must  look  to  the  husband  for  his  pay, 
even  though  he  supposed  the  husband  to  be  the  owner  of  the  property  ;  but 
that  for  work  the  subcontractor  had  done  with  the  wife's  knowledge  that 
was  not  a  part  of  the  husband's  contract  work,  she  must  pay  him  for  as  if  it 
were  in  fact  her  work.1  A  contract  between  a  husband  and  wife  who  had  parted 
has  been  held  not  void.2  In  most  states  a  woman  has  the  legal  right  to  bind 
herself  by  a  contract,  and  she  and  her  own  property  will  be  liable  for  debts  so 
incurred.  She  may  contract  for  the  erection  of  buildings  upon  her  prop- 
erty.8 A  married  woman  may  contract  as  an  agent  of  hor  husband  or  as 
.agent  of  third  parties.  She  may  contract  for  necessaries  and  bind  her  hus- 
band to  pay  therefor,  but  it  is  on  his  behalf  and  she  assumes  no  responsi- 
bility herself. 

27.  Other  Conditions  Affecting  a  Person's  Capacity  to  Contract.— Dis- 
abilities and  forfeitures  incurred  on  account  of  political  and  social  con- 
ditions of  parties  are  nearly  obsolete  in  this  country.  Outlawry  is  almost 
wholly  unknown.  Attainder  is  prohibited  by  our  constitution,  and  in  times 
of  peace  a  contract  made  and  obligations  assumed  by  an  alien  or  foreigner 
will  be  enforced  by  our  courts.  If  war  be  declared  by  or  against  the  country 
of  which  he  is  a  citizen  he  becomes  an  alien  enemy  ;  his  legal  right  to  sue 
upon  the  contract  is  suspended  until  peace  is  declared.  A  contract  entered 
into  during  war  between  an  alien  and  citizen  is  utterly  void,  for  the  law 
declares  such  contracts  illegal,  because  if  permitted,  an  enemy  would 
thereby  be  enabled  to  disturb  a  nation's  finances  and  wage  war  on  the  inter- 
nal business  and  credit  of  a  country,  to  the  destruction  of  its  resources. 
The  law  of  nations  prohibits  every  kind  of  trading,  commercial  dealing,  or 
contract  between  citizens  of  two  countries  at  war  which  tends  to  increase 
the  resources  of  the  enemy  or  weaken  the  power  of  home  government. 

Seamen  are  special  wards  of  the  law.  The  general  recklessness,  thought- 
lessness, and  ignorance  of  this  class  of  men  is  considered  and  specific  favor  is 
shown  them.  The  law  of  the  United  States  protects  them  from  recovery  of 
any  debt  greater  than  one  dollar  incurred  during  a  voyage,  and  a  sailor  need 
only  produce  his  shipping  papers  to  be  dismissed  from  court.  Contracts 
of  seamen  for  services  constitute  the  bulk  of  this  class  of  cases,  and  as  they 
are  remote  to  engineering,  the  profession  is  referred  to  books  specially  treat- 
ing the  subject. 

In  some  jurisdictions  bankrupts  receive  the  special  protection  of  the  law. 
Since  the  solvency  of  a  person  or  corporation  is  one  of  the  most  necessary 
things  to  inquire  into,  it  can  hardly  be  thought  that  any  one  will  undertake 
to  enter  into  an  agreement  with  a  bankrupt  without  first  ascertaining  his 
resources  or  requiring  a  bond  as  security. 

The  infirmities  of  a  contract  arising  from  the  parties  not  being  sui  juris 

1  Fairbanks  v.   Mothersell,  60  Barb.  406         2  Duryea  v.  Bliven,  122  N.  Y.  567. 
[1871].  3  Greenleaf  v.  Beebe,  80  111.  520  [1875], 


[§29.]  LAW  OF  CONTRACTS.  23 

and  capable  of  contracting  are  not  cured  by  an  assignment  of  his  interest 
by  one  of  the  parties  thereto.1 

28.  Either   Party   Under  Duress. — Neither  party  to  a  contract  should 
have  been  under  duress  of  person  or  goods,2  nor  under  great  excitement,  or 
fear,  or  compulsion  when  the  contract  was  madees     Mere  angry  or  profane 
words,  or  strong  or  earnest  language  will  not  constitute  such  duress  as  will 
relieve  a  party  from  his  contract.     Duress  by  threats  which  will  avoid  a 
contract  only  exists  where  such  threats  excite  or  may  reasonably  excite  a 
fear  of  some  grievous  wrong,  as  bodily  injury  or  unlawful  imprisonment.4 
To  make  a  payment  compulsory  such  pressure  must  be  brought  to  bear 
upon  the  person  paying  as  to  interfere  in  some  way  with  the  free  enjoyment 
of  his  rights  of  person  or   property.5     The   imprisonment,  threatened  or 
feared,  must  have  operated  on  the  mind  so  far  as  to  deprive  the  contract  of 
the  character  of  a  voluntary  act.8     So  it  has  been  held  that  a  contract  was 
not   signed   under   duress  when  a  contractor   who  had  commenced   work 
under  a  parol  contract  for  grading  one  mile  of  roadbed  was  required  to  sign 
a  contract  for  one-half  a  mile  only,  and  on  his  refusal  to  sign  the  contract  the 
owner   said  to  contractor's  men  :  "  I  will  stand  good  for   no   more   work 
you  do  for  contractor."     Contractor  being  unable  to  continue  the  work 
unless  the  owner  paid  the  men,  he  signed  the  contract.7     A  wife  may  avoid 
her  contract  extorted  by  a  threatened  criminal  prosecution  of  her  husband 
on  the  ground  of  duress.     The  fact  that  the  husband  has  destroyed  the 
forged  papers  incriminating  him,  which  papers  had  been  surrendered  when 
the  wife  gave  her  note,  does  not  prevent  the  wife  from  avoiding  her  note 
extorted  under  threats  of  prosecuting  her  husband.8     Threats   of  lawful 
arrest  of  a  person  justly  amenable  to  criminal  prosecution  without  circum- 
stances of  oppression  or  frand  do  not  constitute  duress  or  menace,  for  which 
a  deed  executed  under  pressure  of  such  threat  can  be  cancelled.' 

29.  Agency — Parties  Acting  by  or  through  their  Agents. — 

— "  by  and  between (name  of  owner  or  corporation.)    , 

acting  by  and  through President,  Treasurer,  Engineer, 

Attorney,  Agent,  by  virtue  of  the  power  vested  in  him  by  power  of 

attorney  of  the day  of 18 

a  copy  of  which  is  hereto  annexed ; "  or  "  acting  by  and  fhrough  the 

Commissioners Board  of  Public 

Works,  by  virtue  of  the  power  vested  in  them  by  chapter of 

the  Laws  of  18 of  the  State  of and  the  amendments 

1  McCorkle  v.    Goldsmith,   1   Mo.  App.      All.  Rep.  8. 

Rep.  172.  4  Adams  v.  Stringer,  78  Ind.  175  [1881]. 

2  6  Amer.  &  Eng.  Ency.  Law.  pp.  57, 92,          6  Stover  v.  Mitchell,  45  111.  213  [18671. 
93  ;  Miller  o.  Miller,  68  Pa.  St.  486  [1871]  ;          6Berrett  v.  Weber,  125  N.  Y.  18  [1890]. 
Adams  v.  Scheffer  (Col.),  17  Pac.  Rep.  21 ;          7McCormick  «.  Dalton  (Kan.),  35  Pac. 
Jordan  v.  Elliott  (Pa.),  15  Cent.  L.  J.  232  Rep.  1113. 

[1882].  "City    Bank    «.    Kusworm  (Wis.),    59 

3  6  Amer.  &  Eng.    Ency.    Law    57-59  ;      N.  W.  Rep.  564. 

McCarthy v.  Hampton  Bldg.  Assn.,  61  Iowa          9  Gregor  v.  Hyde  (C.  C.  A.),  62 Fed.  Rep. 
287 ;    Lomerson    v.    Johnson   (N.  J.),    13       107. 


24          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  30. 

thereto "  "  or  a  Board  authorized  by  virtue  of  an  act  of 

stockholders  of  said  company,  to  construct  a .....,.." 

These  are  clauses  that  should  never  be  omitted  where  the  contract  is 
executed  by  parties  other  than  those  on  whose  behalf  it  is  made.  It  is  a, 
clause  that  will  protect  the  engineer,  agent,  or  board,  and  will  afford  the 
contractor  information  by  which  he  can  learn  the  duties,  powers  and 
resources  with  which  the  parties  propose  to  act.  This  is  imperative  with 
the  contractor,  for  if  the  contract  is  executed  by  an  engineer,  officer,  or 
board  who  has  not  the  requisite  authority,  the  contract  is  void,  and  the 
contractor  finds  he  has  done  work  unauthorized  by  the  principal  and  for 
which  he  may  not  recover. 

30.  Principal  should  be  Made  the  Party  —  If  Agent  Assumes  the 
Obligation  He  will  be  Liable.— The  principal  or  proprietor  should  be  made 
the  party  to  the  contract,  and  his  [its]  name  be  signed  at  the  end.  If 
the  contract  is  executed  by  or  through  an  engineer,  officer,  or  agent,  the 
intention  must  be  perfectly  plain.  The  proper  form  for  such  a  contract  is 
the  one  given  above,  although  other  forms  may  be  binding  and  the  engineer 
or  agent  escape  liability.  Thus  in  an  agreement  in  the  form  "Memoranda 
of  agreement  between  C.  [the  contractor]  and  E.  [the  engineer]  on  the  part 

of  A  [the  company],  the  said  E.  hereby  agrees signed  E,"  E.  was 

held  liable.1  In  another  case,  the  contract  read  :  "  On  behalf  of  B.  we 

hereby  consent money  to  be  paid  to  A.  arid  E.;  E.  to  supervise 

certain  work.  [Signed,  A.  and  E.]"  A.  and  E.  were  held  liable  because  A. 
and  E.  were  to  receive  payment.3  This  case  has  been  criticised  by  good 
authority,  but  it  nevertheless  stands  on  record. 

In  a  contract  of  sale  where  E.  as  agent  for  A.  agrees [signed]  E., 

E.  was  held  personally  liable  on  the  contract.3  The  tendency  seems  to  be 
to  get  away  from  these  precedents,  and  to  interpret  the  contract,  according 
to  the  intention  of  the  parties,4  but  they  are  established  decisions  and,  may 
be  followed.6 

A  mere  description  in  the  body  of  an  instrument  of  a  person  as  agent,, 
without  words  or  necessary  implications  showing  that  he  signs  as  agent  onlyy 
will  not  exempt  him  from  liability  on  the  contract.  So  it  was  held  that  a 
contract  for  the  sale  of  wheat  in  the  following  form:  "  Sold  C.  200  quarters 
wheat  [as  agents  for,  etc.],  and  signed  E.,"  made  E.  liable  upon  the  contract.9 
An  engineer  or  agent  who  uses  his  own  name  instead  of  that  of  his 
principal  (company)  when  he  intends  to  bind  the  latter,  renders  himself 
liable.  The  word  "  engineer  or  agent "  appended  to  his  name  is  universally 

1  Norton  v.  Herron,  Ryan  &  Moody  229.          '  Haskell  v.  Cornish,  13  Cal.  47;  Quig- 

2  Tanner  v.  Christian,  4  E.  &  B   590.  ley  v.    De    Hass,  82  Pa.  St.  267  ;  see  also 
3Paice  V.  Walker,   L.  R    5  Excli.  173;      Hutchisons.  Eaton,  13  Q  B.  D.  861. 

Stone  v.  Wood,  7  Cowen  453.  6  Paice  «.  Walker,  L.  R.  5  Excti.  173 


757. 


4  Deering  v.    Thorn  (Minn.),    13  Rep.       [1870];  nnd  see  Fairlee  v.  Fentou,  L.  R.  5 
17.  Exch.  169. 


§  31. J  LAW  OF  CONTRACTS.  25 

held  a  mere  description  of  the  person.  It  is  held  to  afford  no  relief  from 
personal  liability,  but  amounts  to  no  more  than  if  he  affixed  the  abbrevia- 
tions of  his  collegiate  degrees,  as  C.E.,  M.E.,  or  B.  Arch.1 

If,  on  a  note,  the  name  of  the  corporation  be  signed  followed  by  the- 
name  of  an  individual  with  "Prest."  after  it,  though  without  the  word 
"  per  "  between  the  names,  it  is  the  promisory  note  of  the  corporation  and 
not  a  joint  note.a  If  the  president  had  signed  his  own  name  and  written 
"  Prest.  "  after  the  signature,  it  would  not  have  relieved  him  from  personal 
liability.3  If  he  does  not  disclose  the  name  of  his  company  he  is  personally 
liable,  and  parol  evidence  is  not  admissible  to  show  that  a  written  instru- 
ment was  made  on  behalf  of  another  unless  there  be  something  on  the  face 
of  the  instrument  to  indicate  it.4 

31.  Proof  of  Agency. — Some  proof  it  seems  may  be  offered  that  it  was- 
the  intention  of  the  agent  to  bind  his  company  and  not  himself.5  Evidence 
may  be  given  that  it  was  known  to  the  one  party  that  the  other  party  was 
an  agent,  and  evidence  may  be  admitted  on  the  other  hand  to  show  that  in 
this  particular  case  he  was  acting  as  a  principal,  having  agreed  to  pay  for 
the  work  done  out  of  his  own  money.8 

A  distinction  has  been  made  between  contracts  with  public  agents  .and 
officers  who  act  on  behalf  of  their  governments  and  those  made  by  agents 
of  a  private  corporation  or  a  person.  If  a  public  officer  fails  to  bind  his 
government  and  no  action  can  be  had  against  it,  yet  the  officer  is  not  per- 
sonally liable,  the  public  faith  being  the  only  security.  In  the  case  of  a 
private  corporation,  the  law  requires  the  agent  to  see  that  his  employer  or 
principal  is  legally  bound  by  his  act,  or  it  holds  him  personally  responsible/ 
Agency  cannot  be  proved  by  the  declaration  of  one  assuming  to  act  in  that 
capacity  nor  by  declarations  of  one  claiming  to  act  as  agent.8  The 
extent  of  his  authority  cannot  be  shown  by  proving  his  declarations 
though  accompanied  by  acts,  unless  such  declarations  or  acts  were  brought 
home  to  the  principal.9  Evidence  that  there  was  a  general  understanding 


1  Hough  v.  Manzanos,  4  Exch.  Div.  104;  8  K  E   Rep.  586.  note,  and  also  Mid   Co. 
Sayer  t>.  Nicnols,   5  Cal.  487;   see  Hill  v.  Bk.   v.    Hirsh   Bros.,  4  N.    Y    Supp.  385 
Miller,    76   N.  Y.  32  [1879]  ;    Haskell   «.  [1889]. 

Cornish,  13  Cal.  47  [1859]    Sharp  v.  Smith,  5  Deering  v.  Thorn  (Minn.)  13  Rep.  757 

32  111.  App.  336,    "Directors"     Paige  v.  [1882]:  and  see  also  13  Minn.  106.  187;  14 

Walker,  L.  R.  5  Exch.  173  [1870]:  Fullam  Minn.  214 

v.  West   Brookfield,    9  Allen    (Mass.)   1,  «  Hewese.  Andrews  (Colo  ),  20  Pac  Rep 

"  Committee  "     Sperry  v.  Farming,  80  111.  338  p889]. 

371   [1875],   "Trustee"-   Pershing  v.    In-  7  Randall  v.   Van   Vechten,    19    Johns. 

dustrial  Co.  (Minn.),  59  N  W.  R  p.  1084;  (K  Y.)  60 

see  29  Amer.    &   Eng.    Ency.    Law   863,  8  Brady  t>  NaglefTex.  Civ.  App.)   29  S. 

note.  w.  943;  Burke  v.  Frye  (Neb  ).  62  N.  W. 

2  Reeve  v.  Bank  (N.  J.),  23  Alt.  Rep.  Rep.  476;  Fullerton  v  MeLaudilin  (Sup), 
853.  24  N.  Y.  Supp    280;  Dowden  v.    Crvder 

3  Heffner  «.  Brownell,  31  K  W.  Rep.  (N  J  ),  26  Atl.  Ren.  9M 

947  [1887  J.  9  RichaH^n  Co.  v.  School  Dist. 

4  See  collection  of  cases  and  references  in  64  N.  W.  Rep.  218. 


26          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  32. 

among  business  men  that  an  agency  existed  has  been  held  admissible,1  and 
the  agency  may  be  proven  by  letters  and  telegrams  from  the  principal.2 

32.  Names  of  Parties  in  Body  of  Contract  should  Correspond  with 
Signatures. — The  names  of  the  parties  in  the  introduction  should  corre- 
spond strictly  with  the  signatures  and  seals  at  the  end  of  the  contract,  for 
a  variance  may  be  fatal  to  the  contract.3  A  contract  made  in  the  name  of 
a  railroad  corporation  for  grading  its  roadbed  was  signed  by  its  engineer, 
who  used  his  own  private  seal,  subscribing  to  his  signature  and  seal  "  Chief 
Engineer  of  T.,  etc.,  R.  Co.,  and  as  such  its  authorized  agent  to  make  this 
agreement."  And  the  court  held  it  was  not  the  corporation's  sealed  con- 
tract; but  as  the  engineer  had  authority  to  make  a  simple  contract,  that  the 
seal  should  be  disregarded  and  the  contract  held  a  simple  contract.*  This 
has  not  been  the  universal  interpretation  of  such  contracts,  and  unless  it  can 
be  shown  that  a  simple  contract  was  entered  into  preliminary  to  the  sealed 
instrument,  it  is  submitted  that  the  contract  would  fail.  It  is  difficult  to 
impose  upon  the  parties  a  contract  which  they  never  contemplated  or  in- 
tended, but  if  they  have  undertaken  to  merge  an  existing  simple  contract 
into  a  specialty  and  have  failed,  then  the  simple  contract  remains  and  the 
written  document  is  evidence  of  the  terms  of  that  contract.  It  is  very  un- 
safe to  draw  contracts  in  such  a  form;  the  party  who  covenants  should  be 
the  party  to  sign  and  seal.  If  the  covenantor  does  not  sign  and  seal,  then 
he  is  not  liable  because  it  is  not  his  seal; 6  and  the  party  who  has  signed 
and  sealed  is  not  liable,  for  it  is  not  his  covenant.  It  is  important  to  dis- 
tinguish between  simple  contracts  and  contracts  under  seal  in  determining 
whether  the  engineer  [agent]  or  principal  is  liable.  In  simple  contracts  the 
intention  of  the  parties  should  prevail ;  in  contracts  under  seal  the  question 
is,  who  signed  and  sealed  the  specialty  and  who  made  the  covenant.  There- 
fore a  deed  made  in  the  name  of  a  corporation  authorized  by  law  to  have  a 
common  seal,  signed  by  the  president  and  secretary  of  the  corporation,  but 
without  authority  from  the  board  of  trustees  and  not  sealed  with  the 
corporation  seal,  was  held  void.6  It  seems  that  a  public  officer  does  not  bind 
himself  to  pay  the  debt  of  his  principal  when,  in  a  sealed  instrument,  he 
imposes  the  obligation  upon  himself.7 

1  Gregory  Hu'son  (Tex.),  30  S.W.  Rep.  v.  Garnish,  13  Cal.  47  [1889] ;   Dickerman 
489.  v.  Ashton,  21  Minn   538  [1875] 

2  Farrell  v.  Edwards  (S.  D.),  66  N.  W.  6  See  Whitfordfl.  Laidler,  94  N.  Y.  145  ; 
Rep.  812  Appleton  v.  Binks,  5  East  148;  Townsend 

As  to  the  prop  r  manner  for  corpora-  «.  Hubbard,   4    Hill,   351;    McCauley  v. 

tion  officers  to  sign  and  indorse  negotiable  .Tennv.  5  Houston  (Del.)  132. 

instruments    and    the    liabilities    created  6  Mott  v.  Danville    Seminary    (111.),  21 

thereby,  see  39  N.  W.  Rep.  640,  note,  and  N.  E   Rep.  927  [1889]. 

3  N.  Y.  Supp.  771,  note.  7  Knight  «.  Clark  (N.  J.),  2  Atl.  Rep  780 

3  Mott  v.  Danville  Seminary  (111.),  21  [1885];  Huthsing  v.  Bausquet,  12  The  Re- 
N.  E.  Rep.  927.  porter  225;  but  see  Wing  v.  Glick,  46  Iowa 

4  Snxton  i).  Texas,  S.  F.  &  N.  R.  Co.  473  [1881]. 
(N.  M.),  16  Pac.  Rep.  851  [1888]  ;  Haskell 


§  35.]  LAW  OF  CONTRACTS.  27 

33.  Agents  should  be   Duly  Authorized   to  Contract.—"  by  or  through 

,   President,  Treasurer,  Engineer,  or  other  officer   or  agent." 

Every  person  who  enters  into  a  contract  with  officers  or  agents  of  a  public 
corporation  is  bound  at  his  peril  to  ascertain  the  extent  of  their  authority.1 
He  must  know  the  extent  of  their  power  conferred  by  the  act  of  incorpora- 
tion, and  notice  all  public  limitations  on  their  authority.     Rules  and  regu- 
lations of  a  private  corporation  made  and  signed  by  the  officers  cannot, 
however,  affect  contracts  made  by  third  parties  with  their  agents  without 
notice  of  such  rules.2 

34.  Unauthorized  Acts  of  Agent  may  be  Ratified  or  Adopted. — A  private 
corporation,  like  an  individual,  may  ratify  the  acts  of  its  officers  or  agents 
-done  in  excess  of  authority,  if  it  could  have  authorized  the  act  itself.3     It  is 
submitted  that  if  a  contract  with  a   private  corporation  or  individual  were 
declared  void  for  want  of  authority  in  the  agent  to  contract,  that  the  con- 
tractor could  recover  on  an  implied  contract  to  pay  for  the  benefit  it  had 
received,  but  not  upon  the  contract  under  which  the  work  was  begun. 

35.  No  Claims  or  Obligations  are  Created  by  Contract  of  Public  Officer  or 
Agent  who  Acts  without  Authority. — Contracts  by  piiblic  officers,  or  officers 
and  agents  of  public  corporations,  must  be  strictly  within  the  authority  dele- 
gated by  the  act  of  incorporations.4  Contracts  made  in  excess  of  such  power 
conferred  by  the  sovereign  power  will  not  bind  the  corporation,  nor  is  there 
any  guaranty  on  the  part  of  the  corporation  that  the  forms  of  law  have 
been  complied  with  because  its  officers,  without  authority,  attempt  to  con- 
tract.5    Those  dealing  with  cities  and  other  public  corporations  must  see  to 
it  that  its  agents  have  power  to  act,  for  no  liability  is  incurred  for  work  done 
under  a  void  contract.5     They  must  ascertain  at  their  peril  that  officers  are 
acting  within  the  scope  of  their  lawful  powers.     They  must  ascertain  and 
take  notice  of  the  extent  and  power  of  a  building  committee  to  bind  the 
city.6     Likewise  a  party  who  undertakes  work  under  an  order  of  a  court 
must  see  to  it  that  the  order  as  entered  by  the  clerk  in  the  records  is  in 
accordance  with  the  terms  of  his  agreement,  or  run  the  chances  of  not  recov- 

i  Davis  D.  The  City,  3  Phila.  374  [1859] ;  4  Wallace  «.  Mayor  of  San  Jose,  29  Cal. 

1  Dillon  Munic.  Corp.  (Ed    1873).  §  372;  181. 

Baltimore  v.  Reynolds,  20-Md.  1;  Huniew.  5D?ily  v.  San   Francisco,  13  Pac.  Rep. 

United  States.  132  U.  S.  Rpp.  406;  Wells  321;  Hume   t>.   United   States,    132   U.  S. 

•v.  Mich.  Mut.  L.  Ins.  Co    (W.Va.),  23  S.  Rep.  406,  and  see  Dhrew  v.  Altoona,  121 

E    Rep.  527;  Pearce  *>.  Madison  &  J.  R.  Pa.  St.  411;  McDonald  v.   Mayor,    68  N. 

Co  ,  21  How.  (U  S.)  441;  Smith  v.  Co-op-  Y.  27;  Smith  v.  City  of  Newburg,  77  N. 

•erative  D.  Ass'n.  12  Daly  (N.  Y.)  304;  Lit-  Y.  136:  Davis  «.City,  3  Phila.  374;  Miller, 

tie  v  Kerr  (N.  J.),  14  All.  Rep.  613.  «.  Goodwin,  70  111.  659;  Batemana.  Mayor, 

s  Walker  v.  Wilmington,  C.  &  1ST  R.  Co.  3  H.  &  N.  323. 

<N.  Car.),  1    S.    E.    Rep.    366;  Griffins  v.  6  Cheeney  v.  Brookfield,   60  Mo.   53,  17 

Land  Co.,  3  Phila.   447   (1859);  Blanding  Amer.  &  Eng.  Ency.  Law   157,  15  Amer. 

i)  Davenport,  etc.,  N.  R.  Co.  (la.),  55  N.  &  Eng.  Ency.   Law   507-509;   Keating  v. 

W  Ren.  81;  R.  R.  &B'king  Co.  •».  Skellie,  Kansas  City,  84  Mo.  415;  Boston  E.  L.  Co. 

16  S.  E.  Rep   657.  «.  Cambridge  (Mass.),  39  N.  E.  Rep.  787; 

3 4  Amer.  &  Eng.  Ency.  of  Law  247,  and  Osgood  v.  Boston  (Mass.),  43  N.  E.  Rep. 

cases  cited,  108. 


28          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§36., 

ering  for  his  work.  This  was  a  contract  to  survey,  subdivide,  map,  and 
classify  school  lands  by  a  person  who  had  no  personal  fitness  to  perform  the 
work,  which  the  commissioners  of  the  court  knew.  Though  it  was  under- 
stood that  the  person  was  to  employ  substitutes  to  perform  the  work,  it  was 
held  that  an  order  entered  in  the  records  which  fails  to  mention  the  fact 
that  the  contractor  was  to  employ  substitutes,  could  not  be  corrected.1  Con- 
tracts made  by  a  receiver  of  a  railroad  company  for  materials  and  supplies 
in  excess  of  the  needs  of  the  road  cannot  be  enforced  against  the  receiver. 
It  was  held,  however,  that  the  contractor  was  entitled  to  be  reimbursed  for 
expenses  incurred  in  good  faith  under  such  contracts.2 

36.  Public  Agents  Not   Liable   for  Blunders. — A  contractor  cannot  be 
too  cautious  and  careful  in  taking  public  work.     Commissioners  and  boards 
of  public  works,  city  engineers,  supervisors,  and  other  officers  are  likely  to 
mistake  the  extent  of  their  powers,  and  to  contract  for,  and  order  things, 
for  which  the  contractor  can  never  recover.     The  innocence  and  honesty 
with  which  the  officer  oversteps  the  limit -of  his  authority  seem  to  afford  no 
excuse   to  the  contractor's  neglect  to  ascertain  the  extent  of  his  powers.3 
The  corporation  is  not  liable,  and  if  the  officer  has  exercised  his  honest  judg- 
ment, and  is  guilty  of  no  negligence  or  abuse.4  he  is  not  liable  for  innocent 
blunders  or  mistakes.6  * 

37.  Agent's  Authority  must  Come  from  His  Principal. — Contractors  will 
ask  "With  whom  can  I  safely  contract  ?  "     The  answer  to  this  must  depend 
upon  the  circumstances  and  conditions  of  each  case.  If  the  contractee  be  an 
incorporated  company  it  will  be  well  to  have  access  to  its  charter,  in  which 
its  powers  and  purposes  will  be  set  forth,  and  a  copy  of  its  by-laws  will  shed 
some  light  upon  the  powers  of  the  persons  exercising  authority.     If  a  stock 
company  there  will  be  a  board  of  directors,  who,  in  a  strict  legal  sense,  are 
agents  and  representatives  of  the  corporation    and  trustees  of  the  stock- 
holders, but  in  a  practical  sense  the  board  of  directors  become,  so  far  as  the 
company's  relations  to  the   public  are  concerned,  the  corporation  itself.6 
Whatever  authority  officers,  agents,  and  employees  have  they  must  derive 
from  the  board  of  directors  or  governing  power,  unless  they  are  conferred 
by  the  charter  of  the  corporation  or  the  legislative  act  creating  the  body 
politic.     The  authority  to  contract  must  be  given  either  expressly,  impliedly, 
or  by  ratification.7     Contracts  which  a  corporation  may  legitimately  make, 
the  manner  of  the  making  of  which  is  not  directed  otherwise,  may  be  made  by 
its  board  of  directors  without  the  consent  or  ratification  of  stockholders  ; 

1  Gano  v  Palo  Pinto  Co.  (Tex.),  8  S.  W.       phrey  v.  Jones,  71  Mo.  62;  Dillon's  Mun. 
634  [1888].  Corp.,   vol.    2  (3d  ed.),  £§  588,  978  and 

2  Little  v.  Vanderbilt  (N.    J.),    26   Atl.       979. 

Rep.  1025.  •  Board  of  Com'rs    v.   L.  M.  &    B.  R. 

*1  Dill.  Mun.  Corp.,  §  372.  Co.,  7  Araer.  Corp.  Gas.  26. 

4  States  Kara,  81  N.  J.  Law  259.  'The  L.  E.  &  St.  L.  Ry.  Co.  v.  McVay, 

6  Hall  v.    Craudall,   29  Cal.  567;  Hum-  98  Ind.  Rep.  391  [1884]. 

*  See  also  Sees.  226-259,    "Engineers'  Personal  Liability." 


§38.]  LAW  OF  CONTRACTS.  29 

.and  in  the  absence  of  fraud  or  collusion  on  the  part  of  the  directors,  they 
are  binding  on  the  corporation.1  If  the  contractee  be  a  municipal  corporation, 
then  the  governing  body  is  a  board,  council,  or  mayor  elected  by  the  people, 
whose  powers  and  duties  are  defined  in  the  charter,  subject  to  such  restric- 
tions and  modifications  as  the  legislature  may  have  made  since  the  city's 
incorporation.  The  powers  of  the  general  government  and  its  officers  must 
be  ascertained  in  the  same  manner  from  the  constitution,  the  laws  enacted, 
.and  the  rules  and  customs  of  departments. 

38.  Authority  cannot  be  Inferred  from  Business  or  Family  Relations.— 
From  the  simple  fact  that  a  person  is  an  officer  of  a  corporation  one  cannot 
infer  authority  to  contract  on  its  behalf.3  The  president  of  a  company  has 
no  power  by  virtue  of  his  office  simply  to  enter  into  a  contract  on  behalf  of 
his  company  as  for  the  construction  of  its  works.3  Nor  can  the  president 
and  secretary  of  the  company  together.4  The  assents  of  a  director,  the  com- 
pany's land  committee,  its  civil  engineer  and  a  stockholder  altogether  do  not 
establish  the  president's  authority  or  make  the  contract  valid.5  It  has  been 
held  that  an  engineer  charged  with  the  duty  of  engrossing  the  contract  and 
procuring  the  signature  of  the  contractors,  for  which  no  particular  time  was 
fixed  and  no  limitation  was  imposed  upon  his  power,  may  consent  to  a  delay 
of  a  month  in  the  execution  of  a  written  contract,  and  the  company  cannot 
repudiate  the  contract  on  account  of  such  delay,  even  if  unreasonable.8 

If  it  appeared  that  the  president  was  the  officer  with  whom  alone  all 
the  negotiations  were  had  which  resulted  in  the  execution  of  both  contracts; 
that  he  was  its  managing  and  controlling  man;  that  he  was  present  as  its 
manager  at  the  time  of  the  arbitration,  when  the  mistake  in  the  latter 
contract  was  discovered,  and  that  attention  being  called  to  it,  he  acknowl- 
edged it,  and  consented  to  the  change,  so  that  the  truth  might  be  set 
forth,  it  was  held  that  such  officer  had  power  to  bind  his  company  by 
consenting  to  a  change.7  If  the  president  and  secretary  have  executed 
and  sealed  a  contract  in  the  name  of  a  corporation,  though  not  with  the 
express  consent  of  the  directors,  it  is  binding  on  a  corporation  which  has 
received  the  benefits  of  the  contract,  and  has  conducted  its  business  in 
compliance  therewith  and  in  such  a  manner  that  the  directors  must  have 
had  knowledge  of  it.8  If  the  president  or  the  executive  officer  of  a  corpora- 
tion cannot,  by  virtue  of  his  position,  contract  on  behalf  of  the  company,  it 

'Beveridge  v.   K  Y.  El.   R.    Co.,  112  4Mott  v.  Danville  Seminary  (111.),  21  N. 

N.  Y.  1  [1889].  E.  Rep.  927  [1889J. 

'Bisley  «    J.  B.  &  W.  Ry.  Co.,  1   Hun  6  Stanleys.  Sheffield  &  Co.  (Ala.),  4  So. 

202  [1874];  Ry.  E.  &  P.  Co.  v.  Bank  (Sup.),  Rep.  34  [1888]. 

31  N.  Y.  Supp.  44.  •  Pratt  v.  Hudson  R.  R.  Co.,  21  N.  Y. 

3  Templine  «.   Chicago,  B.  &  P.  R.  Co.  305. 

(la.),  35  N.  W.Rep  634  [1887];  Griffith.?.  'Nichols  v.  Scrnnton   Steel  Co.  (N.  Y. 

C.,  B.  &P.  R.  Co.  (la.),  36  N.W.  Rep.  901  App.),  33  N.   E.  Rep    561;    semble  Loeb 

[1888]*  Bi-Spool  S.  M.   Co.  v.  Acme  Mfg.  Fdy.  Co.  v.  Stout,  61  111.  App.  166. 

Co.  (Mass.),  26  N.  E.  Rep.  991  [1891];   but  8  Jonrdan   v.  Long  Island   R.    Co.,  115 

see  Loeb  Fdy.Co.  •».  Stout,  61  111.  App.  166,  New  York  380  [1889]. 
and  State  v.  Heckart,  62  Mo.  App.  427. 


30          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.      [§39. 

would  not  be  expected  that  any  of  the  subordinate  officers  would  have  such 
powers.  Such  acts  may  be  ratified  by  the  board  of  directors,  or  such  powers 
may  be  presumed  and  established  by  proof  of  previous  adoption  of  similar 
acts. 

If  a  contractor  enters  into  a  contract  with  an  agent  he  should  have 
proof  of  that  agent's  authority  or  he  does  so  at  his  peril.1  *  In  general,  an 
agent  may  do  such  business  only  as  is  ordinarily  within  the  scope  of' his 
business,  but  the  making  of  contracts  does  not  in  general  belong  to  anybody 
but  the  parties  themselves,  unless  express  authority  is  shown,  and  then  only  to 
the  extent  of  the  authority  conferred.2  So  it  has  been  held  that  presidents 
(see  ante],  general  managers,  secretaries,  attorneys,3  engineers,4  and  officials 
in  general*  cannot  contract.6 

The  mere  proof  of  family  relationship  does  not  establish  agency  between 
the  parties.  A  son  has  no  authority  to  act  for  his  parents  merely  because  of 
the  relation  existing  between  them.  To  establish  agency  other  evidence  is 
required.7  The  same  is  true  of  husband  and  wife,  father  and  son,  or  brother 
and  brother. 

No  power  exists,  either  in  the  commissioner  of  public  works  or  in  the 
mayor,  or  in  both  acting  together,  to  enter  into  a  contract  on  behalf  of  the- 
city  for  the  erection  of  water-pumping  machinery,  without  previous 
authority  of  the  city  council,  or  an  appropriation  therefor.8  Authority  to 
borrow  money  for  a  public  work  is  not  authority  to  undertake  the  work.9 

39.  Boards,  Committees,  and  Councils  in  Their  Representative  Capacity.— 
A  very  common  and  most  unfortunate  circumstance  for  contractors  is  to 
work  under  a  committee  or  board  whose  members  attempt  to  act  individ- 
ually. Members  of  boards  or  committees  visit  the  works,  give  directions, 
order  changes,  and  authorize  new  works  which  only  the  body  or  board  as  a 
whole  have  authority  to  direct.  If  a  contractor  obeys  such  individual  instruc- 
tions he  runs  the  risk  of  losing  the  price  of  the  work,  for  such  work  ordered  by 
individual  members  of  a  committee,  board,  or  council  are  unauthorized,  and 
generally  no  recovery  can  be  had  against  the  corporation  or  its  officials. f 
Good  business  men  would  not  undertake  such  methods,  but  circumstances 

1  Cases,  29  Amer.  &  Eng.  Ency.  Law,  J.).   44  N.  J.  263  [1888];   but  see  Ry.  E. 
861.  note  2.  &  P.  Co.  v.  Bank,  31  N.  Y.  Supp.  44;  Lo- 

2  State  v.  Michigan  City  dud.),  37  K  E.  cust  Mt.  W.  Co.   v.  Yorgey  (Pa.),  13  All. 
Rep.  1041;  Chicago  Gen'l  Ry.  Co.  v.  Chi-  Rep.  956  [1888].   by  an  engineer;    Dwen- 
cago  City  Ry.  Co.,  62  111.  App   502.  ger  v.  C.  &   G.  T.    Ry.    Co.,  98  Ind.   153 

3 Chicago  Gen'l  Ry.  Co.  v.  Chicago  City  [1884];  The  L.,  E.  &  St.  L.  Ry.   «.  Mc- 

Ry.  Co.,  supra.  Vay,  98  Ind.  391  [1884],   general  manager. 

4  Jackson  «.  The  N.  W.  R.  Co.,  1  Hall&  7  Walsh  v.  Curley  (Com.  PI.),  16  N.  Y. 

Tweele  Rep.  75  [1848],  Enrineer.     Ashue-  Supp.  871;  Gibson  v.  Hardware  Co.  (Ala  )> 

lot  Mfg.  Co.    v.    Marsh.    1  Gush.  (Mass.)  10  So.  Rep.  304. 

507:  Lyndon  M.  Co  v.  Lyndon  Lit.  Inst.,  8City  of  Chicago  v.  Fraser,  60  111.  App, 

63  Vt.  581.  404. 

5Dobson  v.  More,  62  111.  App.  435.  9Goddard  v.  Harpswell,  88  Me.  228:  but 

6 See  4  Amer.  &  Eng.  Ency.    Law  359;  see  Damon  «.  Granby,  2  Pick.  (Mass.)  345. 
13  S.  W.  Rep.  1188;  Little  v.   Kerr  (N. 

*  See  Sec.  35,  supra.  \  See  Sees.  29-39,  supra. 


§40.]  LAW  OF  CONTRACTS.  31 

arise  which  make  such  acts  very  common.  Such  orders  or  instructions  may 
be  adopted,  ratified,  and  authorized  by  the  body  when  they  become  binding, 
and  recovery  for  work  done  under  them  may  be  had.1  A  committee  appointed 
by  a  town  to  take  charge  of  the  erection  of  a  building  are  agents  of  the  town, 
and  can  act  by  agreement  of  the  members  separately  obtained,  and  need  not 
be  in  session  as  an  organized  body."  So  when  a  contractor  furnished  a  differ- 
ent stone  in  the  place  of  stone  called  for  in  the  contract  it  was  held  that  testi- 
mony of  one  of  the  committee  appointed  to  take  charge  of  the  building  was 
competent  to  show  that  a  majority  of  the  committee  had  agreed  to  the 
change,  and  that  the  architect,  a  member  of  the  committee,  had  so  stated  to 
the  contractor  in  presence  of  the  witness.2  *  A  board  of  public  works  may 
exceed  its  power  and  its  acts  or  contracts  be  ultra  vires  and  void.  For  that 
reason  a  request  by  such  a  board  that  the  contractor  suspend  work  on  a  street 
pending  an  injunction  suit  by  an  abutting  owner  will  not  make  the  city 
liable  for  delay.3  The  object  and  authority  of  a  board  of  improvement  or 
commissioners  being  limited  to  construction  and  the  paying  for  sewers,  the 
commissioners  after  completion  of  the  sewers  cannot  bind  the  district  or 
themselves  as  a  board  by  a  contract  for  water  for  flushing.4 

40.  Public  Officers  are  Presumed  to  Do  Their  Duty. — In  the  absence  of 
proof  to  the  contrary  there  is  a  presumption  that  the  public  officers  do  their 
duty.5  This  may  be  an  advantage  to  the  contractor  if  the  legality  of  his 
claims  be  contested  on  account  of  any  dereliction  of  duty  or  excess  of  power 
on  the  part  of  the  officers.8  Where  the  record  shows  the  letting  of  a  con- 
tract for  building  a  bridge  in  a  city  at  a  price  greatly  exceeding  ten  thou- 
sand dollars,  but  does  not  show  whether  a  tax  was  imposed  or  bonds  issued 
in  excess  of  that  sum  in  any  one  year,  it  will  be  presumed  that  the  council 
did  its  duty  in  that  respect.  The  council  having  acted  upon  plaintiff's 
account  for  the  whole  of  the  work  embraced  in  said  contract,  and  having 
ordered  it  to  be  paid,  except  as  to  a  single  item  of  work  which  the  parties 
agreed  to  defer,  it  will  be  presumed,  in  the  absence  of  anything  in  the  record 
upon  the  subject-matter,  that  said  account  was  verified  in  the  manner 
required  by  the  charter.  In  the  absence  of  proof  showing  that  work  was  not 
completed  according  to  contract  it  will  be  well  presumed  that  the  city  engi- 
neer in  reporting  a  final  estimate  and  the  completion  of  the  work,  and  the 
city  council  in  approving  the  report  and  ordering  the  payments,  did  their 
duty.7  The  one  who  attempts  to  show  irregularities  must  prove  that  the 

1  Albany  City  Natl.  Bk.  v.  Albany,  92  N.  5,Valley  Tp.   v.  King  Iron    Edge.   Co. 

Y.  363  [1883].  (Kan.  App. ),  45  Pac.  Rep.  660. 

8  Shea  u.  Town   of  Milford  (Mass.),  14  «  Howard  c.  Oshkosh,  33  Wis.  309  [18731. 

N.  E,  Rep.  764  [1888].  '  Bohall  i>.  Neiwall  (la.),  39  N.  W.  Rep. 

3Matthewson  v.  Grand  Rapids  (Mich.),  217  [1888];  also  Jenkins  v.  Stetler  (Ind.),  a 

50 N.  W.  Rep.  651.  N.  E.  Rep.  7  [1889];  N.   Chicago  St.   R. 

4  Pine  Bluff  Water  &  Light  Co.  v.  Sewer  Co.  v.  Cheetham,  58  111.  App.  318. 
District  No.  1  (Ark.),  19  S.  W.  Rep.  576. 

*  See  Sec.    48. 


32          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  41. 

public  officers  did  not  do  their  duty.1  Contracts  of  public  corporations,  made 
through  their  officers  without  authority  of  law,  are  void,  and  the  corporation 
may  successfully  interpose  the  plea  of  ultra  vires,  setting  up  as  a  defense  its 
•own  want  of  power,  under  its  charter  or  constituent  statute,  to  enter  into  the 
contract.2  Where  one  has  contracted  w^th  an  alleged  corporation,  and  is 
sued  for  failure  to  perform  the  contract,  he  cannot  be  heard  to  say  that  the 
corporation  had  no  existence,  and  for  that  reason  no  contract  was  made.3 

41.  Means  of  Obtaining  Information.— Cautious  contractors  will  ascer- 
tain the  powers  of  individuals,  boards,  and  committees  in  as  quiet  a 
manner  as  possible.  The  self-esteem  of  some  officials,  and  the  indignant 
.spirit  in  which  they  resent  any  doubts  expressed,  as  to  their  authority 
to  undertake  and  carry  out  projects,  are  enough  to  convince  a  shrewd  man 
of  the  impropriety  of  seeking  information  directly  from  office-holders. 
Usually  the  documents  of  incorporation  are  public  property,  and  access 
may  be  had  to  them  at  the  government  offices.  The  commercial  stand- 
ing of  a  corporation  may  be  had  at  the  commercial  agencies,  and  a  well 
informed  local  attorney  may  be  employed  to  give  a  reasonably  safe  opinion 
.as  to  the  legality  of  the  act,  or  the  liability  of  the  company,  or  the  extent  o/ 
the  duties  and  powers  of  its  officers.  A  successful  contractor  will  not  sacri- 
fice any  honest  means  to  obtain  and  keep  the  favor  of  officials  of  large  cor- 
porations, nor  will  he  stupidly  demand  information  of  them  which  may 
offend. when  he  can  indirectly  and  discreetly  inform  himself 'through  other 
channels,  whether  outside  or  inside.  To  secure  such  information  is  the 
legitimate  business  of  attorneys  and  counselors  at  law,  and  they  need  not 
divulge  the  name  of  their  client  nor  in  whose  interest  they  are  at  work.  An 
•engineer  should  appreciate  that  the  contractors  require  such  information, 
and  he  should  provide  copies  of  the  act  or  charter  under  which  the  work  is 
undertaken,  so  that  bidders  and  contractors  may  make  such  inquiries  as  seem 
pertinent  to  their  interests  and  acquire  information  of  the  work  to  be  done 

Complicated  questions  come  up,  and  many  a  contractor  has  performed 
work  only  to  find  when  too  late  that  his  labor  has  been  for  nothing.  An 
instance  of  the  authority  of  a  public  officer  is  given  in  the  f ollowing  case : 
Where  the  legislature  or  congress  directed  a  public  officer,  the  secretary  of 
the  navy,  to  contract  for  the  construction  of  public  works  according  to  a 
plan  submitted  previously  and  on  file,  and  the  officer  directed  changes  in 
the  plan  and  contract,  it  was  held  that  the  act  of  congress  directing  the 
officer  to  enter  into  the  contract  was  not  the  contract  itself,  but  that  the 
officer  who  made  the  contract  might  vary  the  details,  and  that  the  rule 
regarding  the  effect  to  be  given  a  contract  with  the  United  States  was  the 
same  as  in  a  contract  between  man  and  man.4 

1Hellman  0.  Shoulters  (Gal.),  44  Pac.  3  Fresno  Canal  &  Irrigation  Co.  v.  War- 
Hep.  915.  ner  (Gal.),  14  Pac.  Rep.  37. 

2  Miller  v.  Goodwin,  70  111.  659  [1873]  ;  4  Gilbert  v.  United  States,  1  Ct.  of  Claims 

accord  Ryan  c.  Lynch,  68  111.  160;  Byrne  28  [1863];  Lord  v.  Thomas,  64  N.  Y.  107. 
35.  E.  Carroll  (La.),  12  So.  R?p.  521. 


§42.1  LAW  OF  CONTRACTS.  33 

42.  An  Agent  or  Fiduciary  Can  have  No  Interest  in  the  Contract. — A 

director,  public  officer,  trustee,  executor,  receiver,  engineer,  or  other  agent 
or  fiduciary  can  have  no  personal  interest  in  the  contract  of  the  company, 
city,  principal,  or  cestui  which  he  represents.    A  director  cannot  become  a 
contractor  with  his  company,  nor  become  a  member  of  a  company  with  whom 
the  board  of  directors  has  made  a  contract  for  the  erection  of  works,  nor  share 
in  the  profits  of  such  a  contract.     If  such  contracts  are  made  they  will  be 
held  to  have  been  made  for  the  benefit  of  the  company  which  the  director 
represents,  and  a  court  of  equity  may  compel  him  to  account  for  the  profits 
realized  under  such  an  agreement.1     Such  a  contract  may  be  ratified  by  the 
stockholders  and  they  may  insist  upon  the  advantages,  or  they  may  disaffirm, 
it  entirely.    A  president  of  a  corporation  who  takes  an  assignment  of  a 
contract  for  the  construction  of  its  works  acts  as  a  trustee  and  for  the 
"benefit  of  the  corporation,  and  not  as  an  assignee  of  the  contractor.3    A 
contract  made  by  a  city  council  in  which  one  of  its  members  is  interested 
may  be  avoided  by  the  city,  and  if  the  contract  has  not  been  performed  any 
taxpayer  may  restrain  its  enforcement.3    It  does  not  matter  that  the  mem- 
bers who  are  interested  in  the  contract  voted  against  awarding  the  contract 
to  themselves  or  their  company.*     The  mayor  should  not  act  as  attorney  or 
solicitor  for  the  city  of  which  he  is  an  officer  when  the  city's  charter  forbids 
any  interest,  directly  or  indirectly,  in  any  contract,  office,  or  appointment. s 
The  city  cannot  accept  a  conveyance  of  real  estate  subject  to  a  mortgage 
held  by  the  city  solicitor  when  the  statutes  prohibit  any  public  officer  from 
becoming  interested  in  any  contract  for  the  purchase  of  property  by  the 
state,  county,  or  municipal  corporation.6     An  allowance  to  a  public  officer 
by  a  contractor  or  employee  out  of  the  profits  of  a  contract  with  the  city  or 
government,  however  small  it  may  be,  is  such  evidence  of  fraud  as  will 
invalidate  the  contract.7       A  contract  by  a  freight  agent  to  allow  a  contractor 
a  low  freight  rate  in  consideration  of  a  share  of  the  profits  of  his  contract,8 


1  Portv.  Russel,  36  Ind.  60;  Covington,  6West  «.  Berry  (Ga.\  25  S.  E.  Rep.  508; 

etc..  R.  Co.  v.  Bowler,  9  Bush  468;  Euro-  but  see  Spearman  <o.  Texarkana  (Ark.),  24 

pean  Ry.  Co.  v.  Poor,  59  Me.  377;  Paine  «.  S.  W.  Rep.  883,  where  a  member  of  a  board 

L.  E.  &  L.  R.  Co.,  1  Am.  Corp.  Cas.  386,  of    health  was  allowed  tc  recover  on  a 

31  Ind.  283  [1869];  Guild  v.  Parker,  43  N.  quantum  meruit  for  services  as  a  physician. 

J.  Law  430;  G.  C.  &  S.  R.  Co.  v.  Kelly,  It  seems  the  father,  brother,  or  wife  of  a 

77  111.  426  [1875].  mayor  may  have  an  interest  in  a  contract 

8  Risley  0.  I.  B.  &  W.  Ry.  Co.,  1  Hun  with  the  city.     Devlin  v.  New  York  (Com. 

202  [1874];  and  see  19  Am.  &  Eng.  Ency.  PI.),  23  N.  Y.  Supp.  888. 

Law  873,  874.  6  Marsh  v.  Hartwell,  2  Ohio  N.  P.  389. 

3  McElhinney  «.  City  of  S.  (Neb.),  49  N.  '  Lindsey  «.  The  City,  2Phila.  212  [1858]; 

W.  Rep.  705  [1891];  Gas  Co.  v.  West,  28  Robinson  «.  Patterson  (Mich.),  39  N.  W. 

Neb.  852,  followed.  Rep.  21  [1888]. 

4Kennet  Elec.  Lt.  Co.  v.  Kennet  Sq.,  4  8  Barclay  v.  Williams,  26  111.  App.  213 

Pa.  Dist.  Rep.  707  ;  Foster  «.  Cape  May  [1887]. 
(N.  J.),  36  Atl.  Rep.  1089  [1897]. 


34          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [_§  43. 

or  an  agreement  by  a  bookkeeper  to  disclose  the  financial  condition  of  his 
employer's  business/  *  are  against  public  policy  and  not  enforceable. 

A  principal  who  furnishes  his  agent  money  for  investment  is  entitled  to- 
follow  not  only  the  property  bought,  but  its  proceeds,  if  sold,  so  long  as 
they  can  be  traced  and  identified.2 

Injunction  will  lie  to  restrain  a  school  board  from  executing  a  contract 
with  one  of  its  own  members  to  furnish  supplies  after  the  board  has  passed 
a  resolution  to  purchase  from  said  member;  and  it  is  not  necessary  to  wait 
until  fhe  contract  is  executed.3  Injunction  will  lie  to  restrain  a  public 
officer  from  entering  into  a  contract  with  himself  individually  to  furnish 
supplies  to  a  public  institution.3 

ARTIFICIAL   PARTIES.      CORPORATE   BODIES. 

43.  Charter  and  Statute  Limitations.— Contracts  of  corporations  are 
limited  to  the  powers  given  by  their  charters.  The  act  creating  the  body 
politic,  the  articles  of  incorporation,  and  the  charter  given  by  the  state- 
should  therefore  be  consulted  and  carefully  studied.  A  corporation  is  a 
creature  of  the  law.  It  has  no  powers  except  those  expressly  granted  or  that 
are  necessary  to  the  exercise  and  enjoyment  of  those  expressly  granted.4 
The  acts  and  undertakings  must  not  exceed  the  powers  and  privileges 
granted  by  the  charter,  for  such  acts  will  be  ultra  vires  and  without  effect. 
It  is  not  vested  with  all  the  capacities  of  a  natural  person  or  of  an  ordinary 
partnership,  but  with  such  only  as  its  charter  confers.  If  it  exceeds  its 
charter  powers  not  only  may  the  government  take  away  its  charter,  but 
those  who  have  subscribed  to  its  stock  may  avoid  any  contract  made  by  the 
corporation  in  clear  excess  of  its  powers.5  A  corporation  is  confined  in  its 
operations  to  projects  expressly  enumerated  in  its  charter  or  that  are  strictly 
necessary  to  their  performance. 

A  contract  ultra  vires  the  charter  of  a  corporation  is  void.  It  cannot 
be  made  valid  by  any  subsequent  act  of  the  corporation;6  that  which  it 
cannot  make  or  do  it  cannot  ratify.7  'fhe  state  or  sovereign  power  alone 
can  ratify  a  contract  entered  into  by  a  public  corporation  which  i& 
ultra  vires,  and  make  it  valid  and  binding.8  The  value  of  work  done  for 
a  municipal  corporation  not  pursuant  to  the  charter  cannot  be  recov- 
ered." 

1  Davenport  v.  Hulne,  32  N.  Y.  Supp.       Corp.  Gas.  549. 

803  6Sault  Ste.  Mar'c  v.   Van  Deusan,  40 

2  Harding  v.  Field  (Sup.),  37 N.  Y.  Supp.      Mich.  429. 

399.  7  Board  of  Commissioners  «.  The  L.  M. 

3  Alexander  v  Johnson  (Ind.  Sup.),  41      &  B.  R.  Co.,  7  Amer.  Corp.  Cas.  26. 
N.  E.  Rep.  811.  8  Brown  v.  Mayor,  63  N.  Y.  239 

4Board  of  Tipp  Co.  v.  Railroad  Co.,  7  9  Wallace  v.  Mayor  of  S.  J.,  29  Cal.  181; 

Amer.  Corp.  Cas.  26;  Davis  v.  Old  Colony  see  also  Zottman  v.  San  Francisco  and  26 

R.  Co.,7  Araer.  Corp.  Cas.  549.  Cal.  497,  20  Cal.  96,  and  1  Dill.  Mun. 

5 Davis  v.  Old  Colony  R.  Co.,  7  Amer.  Corp.,  §  372  [1873  ed.j. 

*  See  Sec.  85,  infra. 


§  43.]  LAW  OF  CONTRACTS.  85 

The  contractor,  therefore,  should  not  only  satisfy  himself  that  the  officers 
or  agents  acting  are  the  proper  persons  to  enter  into  the  contract  on  behalf 
of  the  corporation,  but  he  must  also  take  notice  of  the  lawful  limits  of  the? 
company's  capacity,  that  the  contract  is  within  the  scope  of  the  authority 
conferred  by  the  act  of  its  incorporation,  and  that  the  powers  granted  to  it 
have  not  been  surpassed.1  He  is  bound  at  his  peril  to  take  notice  of  the 
lawful  limits  of  its  capacity,2  especially  where  all  acts  of  incorporation  are,, 
or  are  deemed  to  be,  public  acts;  for  every  corporation  organized  under 
general  law  is  required  to  file  in  the  office  of  the  secretary  of  state  a  certifi- 
cate showing  the  purpose  for  which  the  corporation  is  constituted.3 

Some  cases  of  interest  to  engineers  will  illustrate  the  import  of  this  law_ 
A  water  company  in  England  had  been  duly  incorporated  for  the  supply  of 
a  certain  district  with  water  from  certain  sources  within  the  district,  and  to- 
do  all  other  acts  necessary  to  supply  water  to  the  inhabitants  according  to 
the  true  intent  of  the  act.  In  consequence  of  the  increase  in  population, 
the  supply  within  the  district  became  insufficient  both  in  quantity  and 
quality.  The  water  company  employed  a  consulting  engineer  to  make- 
surveys  and  plans,  and  to  report  on  the  feasibility  of  obtaining  a  sufficient 
supply  from  a  certain  stream  of  water  beyond  the  company's  district,  ihe- 
same  plans  and  report  to  be  used  by  the  company  in  its  application  to  par- 
liament for  powers  to  enlarge  its  works  and  to  embrace  this  stream  of  water 
in  its  district.  When  the  engineer  brought  suit  for  the  value  of  his  services 
the  water  company  resisted  payment  on  the  ground  that  the  act  of  employing, 
the  engineer  for  the  work  done  was  beyond  its  powers.  It  was  held  by* 
the  majority  of  the  court  that  the  contract  made  for  the  plans  and  report 
essential  to  its  application  to  parliament  were  not  necessarily  illegal  nor  the: 
contract  void,  but  a  strong  dissenting  opinion  was  delivered  by  the  minority 
of  the  court.  The  case  is  given  to  show  how  strictly  the  courts  may  define  • 
the  powers  of  corporations.  Probably  the  disposition  of  the  courts  can- 
best  be  shown  by  giving  the  last  few  lines  of  the  learned  justice's  dissent- 
ing opinion:  "And  when  I  consider  the  mischief  that  has  been  done  by 
directors,  under  the  temptations  offered  by  interested  parties  and  other  con- 
siderations, adding  to  the  schemes  in  which  parties  have  contributed  their 
capital,  I  own,  hard  as  it  may  be  in  a  particular  case,  I  am  sorry  that  a  lesson 
should  not  be  read  that  those  who  deal  with  directors  must  see  that  they 
have  authority  to  bind  their  companies,  or  must  trust  the  directors  person- 
ally, a  consideration  which  will  make  both  parties  more  cautious  in  their 
speculations  with  other  people's  property."  * 

Likewise  it  has  been  held  that  a  railroad  company  has  no  power  to  employ 

1  Evans  on  Agency,   pp.   26,   211.312;      Cl.  147;  and  see  Village  of  Kent  v.  Cut 
Davis  v  Old  Colony  R.  Co.,  7  Amer.  Corp.       Glass  Co.,  10  Ohio  Cir.  Ct.  Rep.  629. 

Cas.  549;  Li  tier  v.  Jayne,  124111    123.  3  Davis  «.  Old  Colony  R.  Co.,  7  Amer. 

2  Keating   v.    Kansas   City.  84  Mo.  415;      Corp.  Cas  549. 

Turney  v.  Bridgeport,  55  Conn.  412;  Tren-          4  Bateman  v.  Mayor,  etc.,  3  H.  &  K  323,, 
ton  Loco.  Wks.  v.  United  States,  12  Ct.  of 


36          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  44. 

a  mining-eugineer  to  examine  and  make  a  report  on  mines  of  which  the  road 
is  the  outlet,  and  that  the  railroad  company  is  not  liable  to  him  for  his 
services,  even  though  its  business  is  benefited  as  a  direct  result  thereof.1  It 
would,  without  doubt,  have  been  otherwise  if  the  railroad  company's  charter 
permitted  it  to  operate  mines  or  engage  in  mining. 

Another  case  arose  under  a  contract  by  a  corporation  organized  for  the 
the  purpose  of  "  purchasing,  taking,  holding,  possessing,  selling,  improving, 
and  leasing  real  estate  and  buildings,  manufacture,  lease,  sale,  use  of  build- 
ing-stone, lumber,  and  other  building  materials,"  by  which  the  company 
agreed  to  pay  for  services  in  organizing  stock  companies  to  locate  and  en- 
gage in  business  upon  its  land.  The  contract  was  declared  ultra  vires  and 
void.  If  the  contract  had  been  performed,  and  the  corporation  had  received 
the  benefit,  it  would  have  been  estopped  from  availing  itself  of  such  a  defense.2 
A  contract  by  a  railroad  company  to  aid  in  the  construction  of  the  road 
of  another  corporation  in  another  state  is  illegal,  though  it  also  provides  for 
the  construction  of  a  branch  to  its  own  road.3 

A  subscription  for  stock,  in  a  company  which  employs  and  uses  certain 
articles,  by  a  corporation  chartered  to  manufacture  and  deal  in  the  same 
articles  has  been  held  beyond  its  powers.4  The  construction  of  a  levee  has 
been  held  without  the  corporate  powers  of  a  village,5  as  has  the  reconstruc- 
tion and  repair  of  a  building  which  had  been  partly  removed  for  the  exten- 
sion of  a  street.6 

44.  Other  Restrictions  to  Which  Corporate  Bodies  are  Subject— Cost  Must 
be  Within  the  Appropriation  or  Limit  of  Indebtedness. — The  contractor  must 
ascertain  if  there  be  a  charter  or  constitutional  limit  to  the  city's  or  com- 
pany's indebtedness,  for  when  that  limit  is  reached  it  cannot  create  a  new 
debt.7  The  contract  should  not  create  a  debt  in  excess  of  the  fund  appro- 
priated for  the  purposes  of  the  contract,8  for  the  amount  that  it  exceeds  the 
appropriation  cannot  be  recovered.9  The  contract  is  void  as  to  the  amount 
that  the  indebtedness  incurred  by  the  contract  exceeds  the  limit  fixed  by  law.10 

1  Georg  v.  Nevada  Cent.  R.  Co.  (Nev.),  Rep.  384;  Perkinson  v.  St.  Louis,  Mo.  4 

38Pac.  Rep.  441;  and  see  Lewis  *>.  Colgan  App.    322   [1877];    State  v.  Atlantic  City 

(Gal.).  44  Pac.  Rep.  1081.  (N.  J.).  9  Atl.  Rep   759  [1887]. 

*Schnrr  v.  N  Y.  &B   Sub.  Invest,  Co.  8  Turmey  v.  Bridgeport  (Conn.),  12  Atl. 

(Com.  PI.).  18  N.  Y.  Supp.  454;  16  N.  Y.  Rep.  520;  Dhrew  v.  Altoona  (Pa.),  15  Atl. 

Supp.  210.  affirmed.  Rep.  636 

'Bostwick  0.  Chapman,  60  Conn.  551;  9  Atlantic  Ci'y  W.  W  Co.  «.  Reed  CN". 

and  see  Cunningham   v.    Massena  Sp.    R.  J.),  15  Atl.  Rep.  10;  Culburtson  «.  Fulton 

Co.  (Sup.),  63  Hun  (K  Y.)  439,  18  N.  Y.  (111.),  18  N.  E.  Rep.  781. 

Sunp   600  10  Culburtson  v.  Fulton  (111.),  18  N.  E. 

*Knowies  v.  Sandercock  (Cal.),  40  Pac.  Rep.  781  :  Turmey  v.  Bridgeport  (Conn.), 

Rep  1047  12  Atl.  Rep.  520;  Kingsley  v  Brooklyn,  78 

'Newport  v.  Batesville  &  B    Ry.    Co.  N.  Y.  200  [1879]  ;  Boston  El ec.  Lt.  Co.  v. 

(Ark.).  24  S.  W.  Rep.  427.  Cambridge  (Mass.),    39  N.   E.   Rep.  787; 

«Sceerv  v.   Springfield,  112  Ma?s.    512  Lamar  Water  Company  v.  City  of  Lamar 

F18731;  see  Prairie  Lodge  v.  Smith,  58  Miss.  (Mo.),    26  S.  W.  Rep.  1025  ;   Georgetown 

301  W.  Co.  v.  Central  T.  H.  Co.  (Ky.),  34  S. 

7  App.  of  City  of  Erie,  91  Pa.  St.  398  W.  Rep.  435. 
[1879];  Soule  v.  Seattle  (Wash.),  33  Pac. 


§45.]  LAW  OF  CONTRACTS.  37 

When  a  city  charter  provides  that  all  contracts  shall  be  countersigned  by  the 
comptroller,  mayor,  and  clerk,  and  that  the  comptroller  shall  have  made  an 
indorsement  thereon  showing  sufficient  funds  are  in  the  city  treasury,  or 
that  provision  has  been  made  to  pay  the  liability  that  may  arise  under  such 
contract,  it  is  essential  to  the  validity  of  the  contract  that  it  have  such  sig- 
natures and  indorsement.1  The  execution  of  a  contract  by  a  municipal  cor- 
poration gives  rise  to  no  implied  warranty  that  it  has  power  to  make  assess- 
ments with  which  to  pay  for  work  and  materials  under  the  contract,  and 
when  a  statute  authorizing  the  assessment  was  adjudged  unconstitutional 
the  contractor  was  unable  to  collect  what  was  due  him.2  The  city  will  not, 
however,  be  relieved  from  liability  for  negligently  delaying  to  raise  funds  by 
assessment  when  it  has  contracted  to  pay  the  contractor  out  of  such  a  fund.3 
It  seems  that  a  contract  for  the  performance  of  work  or  the  furnishing 
of  supplies  need  not  be  referred  to  the  city  treasurer  for  his  certificate  that 
there  is  sufficient  unappropriated  money  in  its  treasury  to  meet  its  require- 
ments.4 The  contractor  is  supposed  to  know  the  powers  of  the  officers  with 
whom  he  is  dealing,  and  the  courts  hold  that  there  is  no  excuse  for  his  not 
knowing  the  limit  of  indebtedness  fixed  by  the  charter  or  legislative  act,  and 
the  amount  of  the  appropriation.  Such  ignorance  will  not  avail  in  an  action 
for  the  contract  price.5 

45.  Appropriation  Must  Not  be  Exceeded. — The  same  law  holds  when  the 
amount  of  an  appropriation  fora  specific  job  is  limited;  the  cost  of  the  work, 
including  extras,  must  not  exceed  the  amount  of  the  appropriation.  If  it 
does,  the  city  or  town  is  not  liable  for  the  excess  over  and  above  the  appropria- 
tion.8 *  So  when  money  was  appropriated  by  a  town  to  build  and  furnish 
a  town  hall,  and  a  contract  was  awarded  for  the  erection  of  a  hall  at  a  cost 
equal  to  the  full  amount  of  the  appropriation,  it  was  held  that  the  commit- 
tee exceeded  its  authority,  and  that  the  contractor  could  not  recover  a  part 
of  the  appropriation  set  aside  to  furnish  the  hall,  nor  for  the  extra  work  he 
had  done;  and  this  decision  was  made  in  the  face  of  the  fact  that  a  number 
of  the  citizens  had  agreed  to  guarantee  the  furnishing  of  the  hall  if  the  com- 
mittee would  expend  for  the  building  the  entire  sum  appropriated.7  A  con- 
tract for  twenty  years,  or  for  an  indefinite  period,  cannot  be  sustained  as  a 

'City  of  Superior  v.  Morton,  63  Fed.  Rep.  59  N.  W.  Rep.  513  ;  Crampton  v.  Varua  R. 

357;  Holmes  v.  Avondale,  11  Ohio  Cir.  Ct.  Co.,  L.  R.  7  Ch.  568;  Keating  v.  Kansas 

R  430.  City,  84  Mo.  415  ;  Perkinson  v.  St.  Louis, 

2  Barber  Asphalt  Paving  Co.  v.  Harris-  4  Mo.  App.  322  [1877];   Turmey  v.  Bridge- 
burg,  62  Fed.  Rep.  565:  see  also  Connelly  port  (Conn.),  12  Atl.  Rep.  520. 

v.  San  Francisco  (Gal.).  33  Pae,  Rep.  1109.  6Turmev  c.  Bridgeport  (Conn.),  12  Atl. 

3  Little  v.  Portland  (Oreg.),  37  Pac.  Rep.  Rep.  520  [1888]  ;  Nelson  v.  Mayor,  63  N. 
911  ;  and  see  Soule  v.  Seattle  (Wash.),  33  Y.  535  [1876];  see  also  Galveston  v.  Devlin 
Pac.  Hep.  384.  (Tex.),    19  S.  W.  Rep.  395;   Kingsley  v. 

4  L'imar  Water  Co.  v.  Lamar  (Mo.),  26  S.  Brooklyn,  78  N.  Y.  200  [1879]. 

W.  Rep.  1025.  '  Town  of  Westminster  t>.  Willard  (Vt.), 

5  Gutta  Percha  Co.  v.  Ogalalla  (Neb.),       26  Atl.   Rep.   952. 

*8ee  Sec.  44,  supra. 


40         ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  48. 

the  fund  be  not  exhausted  and  his  labor  be  without  remuneration  ; '  and 
wnen  tne  contract  price  is  the  full  amount  of  the  appropriation  he  should 
ascertain  by  what  fund  any  extra  work  ordered  is  to  be  paid  before  perform- 
ing it.a  Changes  and  alterations  imposing  a  greater  liability  are  void,  and 
pay  therefor  cannot  be  collected.3 

48.  Unincorporated  Organizations  as  Parties.  —  Such  are  associations, 
societies,  clubs,  and  congregations  who  get  together  and  agree  to  undertake 
or  promote  certain  plans  and  schemes  for  their  own  or  the  public  benefit. 
Usually  the  powers  and  resourqes  of  such  organized  bodies  are  indetermi- 
nate, and  even  when  the  necessary  funds  are  subscribed  it  is  a  question  as  to 
.how  many  of  the  subscriptions  can  be  collected.  Contractors  and  engineers 
who  undertake  work  for  such  associations,  and  who  are  not  well  protected  by 
liens,  bonds,  or  paid-up  subscriptions,  or  are  not  well  acquainted  with  the 
subscribers,  will  in  making  their  estimates  allow  for  losses  and  the  possible 
failure  to  carry  out  the  project.  When  an  unincorporated  association  enters 
into  a  contract,  the  individual  members  are  liable  either  upon  the  ground 
that  they  held  themselves  out  as  agents  of  a  principal  or  because  they  are 
themselves  principals.  Persons  who  engage  in  an  enterprise  are  liable  for 
the  debts  they  contract,  and  all  who  assent  to  the  undertaking  or  who  sub- 
sequently ratif}r  it  are  included  in  such  liability.4  If  a  committee  has  been 
appointed  to  make  arrangements  they  become  individually  liable  for  work 
done  and  which  was  procured  by  a  subcommittee  of  their  number,  although 
in  making  the  contract  the  subcommittee  assumed  to  act  as  officers  of  the 
association.6  If  a  joint  signer  of  a  contract  who  represents  the  other 
signers  in  superintending  the  work  makes  changes  in  the  terms  of  a  contract 
he  is  personally  liable,  even  though  the  contractor  had  full  knowledge  that 
the  change  was  unauthorized  and  unknown  to  the  other  signers.6  If  the 
contractor,  architect,  or  engineer  be  one  of  the  promoters  and  is  himself  a 
member  of  the  association  and  has  to  bring  suit  for  his  services  it  may  puz- 
zle him  as  to  whom  he  shall  sue.  If  the  relations  of  the  subscribers  par- 
take of  the  nature  of  a  partnership,  then  they  are  liable  both  joint  and 
severally.7  In  dealing  with  incorporated  religious  associations  special  cau- 
tion should  be  exercised,  for  in  several  states  they  cannot  be  sued.8 

49.  Subscribers  to  a  Project.— It  has  been  held  that  an  association  of 
subscribers  to  a  project  to  obtain  a  bill  through  the  legislature  to  build  a 
railroad  was  a  partnership,  and  that  the  engineer,  who  was  one  of  the  sub- 

1  Turmey  «.  Town  of  Bridgeport  (Co  n.),          4  Lewis  t>.  Tilton,  64  Iowa'220  [18841. 
12  Atl.  Rep.  520.  'Fredenhall    ®.   Taylor,    23  Wis.   538; 

5  Turmey  v.  Town  of  Bridgeport  (Conn.),  Landiskowski  «.  Lark  (Mich.),  66  N.  W. 

12  Atl.  R"p.  520  ;  Richardson  9.  Grant  Co.,  Rep.  371. 
27  Fed.  Rep.  495.  'Gutherless  «.  Ripley  (Iowa),  67  N.  W 

8  King  v.  Mahaska  Co.  (Iowa),  39  N.  W.  Rep.  109. 

Rep.  636  [1888]  ;  but  see  Shea  v.  Town  of          7  Davis  v.  Shafer,  50  Fed.  Rep  764. 
Milford  (Mass.),  14  N.  E.  Rep.  764  [1888].          8  29  Amer.  &  Eng.  Eucy.  Law  864. 


§49.]  LAW  OF  CONTRACTS.  41 

scribers,  could  not  sue  one  of  his  associates  in  the  scheme,  a  copartner,  for 
the  value  of 'his  services.  He  should  have  sued  the  firm.1  It  might  make 
some  difference  whether  the  subscriptions  were  for  stock  or  merely  a  dona- 
tion.  The  mere  act  of  subscribing  to  a  project  does  not  ordinarily  create  a 
partnership  unless  it  is  the  manifest  intention  of  the  parties.2  The  signer* 
of  a  subscription  paper  in  the  ordinary  form  are  liable  severally,  and  not 
jointly.3  Each  subscriber  is  liable  for  the  amount  of  his  subscription,  and 
in  no  way  responsible  for  the  payment  of  the  sums  subscribed  by  others.4 

Under  a  contract  between  several  farmers  and  a  construction  company 
to  build  a  factory,  which  containe  1  the  provision  that  "  we,  the  subscribers> 
agree  to  pay  "  the  agreed  amount  for  the  factory,  and  a  provision  that  the 
subscribers  should  form  a  corporation,  with  stock  in  proportion  to  their  paid- 
up  interest,  each  subscriber  to  be  liable  only  for  the  amount  subscribed  by 
him,  it  was  held  that  the  contract  was  several,  and  not  joint,  and  that  each 
was  liable  only  for  his  proportion.5  When  subscribers  have  signed  at  dif- 
ferent times  and  places,  and  without  knowing  what  subscriptions  will  be  sub- 
sequently made,  or  by  whom,  the  contract  does  not  bind  each  subscriber  to- 
pay  the  entire  sum.8  If  the  amount  of  subscription  is  set  opposite  each 
subscriber's  name,  the  liability  of  each  is  as  effectually  limited  as  if  such 
amounts  had  been  (in  words)  limited  in  the  body  of  the  contract.6  A  sub- 
scriber cannot  escape  payment  of  his  subscription  by  an  averment  that  he 
notified  plaintiffs  that  he  had  canceled  his  subscription  before  they  had  ex- 
pended money  or  performed  labor  under  the  contract,  there  being  no  aver- 
ment that  the  cancellation  was  made  before  plaintiffs  .accepted  the  contract.* 
If  a  contractor  would  recover  a  balance  due  and  unpaid  for  the  erection 
of  a  structure  he  cannot  sue  all  the  subscribers  jointly,  but  should  proceed 
against  those  subscribers  who  are  in  default,  or  at  least  his  declaration 
should  allege  certain  subscribers  in  default. 8  The  question  might  be  asked, 
How  is  he  to  know  who  are  in  default  ?  If  the  association  of  subscribers 
has  been  incorporated,  it  seems  the  contractor  may  not  have  a  mechanic's 
lien  on  the  joint  property  for  the  balance  of  the  price  for  work  done  under 
contract  with  the  subscribers9  unless  it  can  be  shown  that  the  corporation 
adopted  the  contract  of  its  promoters.10 

The  payee  named  in  the  subscription  may  maintain  an  action,  as  can  any- 

1  Holmes  v.   Higgins,  1  B.   &  Caldwell          6Davis  v.  Hendrix,  1  Mo.  App.  Rep.  41. 
74  [1822].  7  Davis  v.  Campbell  (la.),  61  N.  W.  Rep. 

2  Parsons  Partnership,  46-7  ;  Shibley  v.       1053. 

Angel,   37  N.   Y.  626   [1868J  ;    Fuller  v.  8  Davis  v.  McMillan  (Ind.  App.),  41  N* 

Rome,  57  N.  Y.  23  [1874].  E.  Rep.  851. 

8  Davis  0.  McMillan  (Ind.  App.),  41  N.  •  Davis  v.  Ravenna  C.  Co.  (Neb.),  67  N. 

E.  Rep.  851.  W.  Rep.  436;  semble  Clayton  v.  Newton, 

4  24  Amer.  &  Eng.  Eucy.  Law  335 ;  Davis  Academy,  95  N.  Car.  298 

«.  Ravenna  C.  Co.  (Neb.),  67  N.  W.  Rep.  10Pittsburg    &  T.    C.   Co.   v.  Quintrell 

436.  (TVim.).  20  S  W.  Rep.  248  ;  Weatherford* 

5  Davis,  etc.,  Manufg.  Co.  v.  Jones  (C.  etc.,  R.  Co.  «.  Granger  (Tex.1    22  S.  W. 
C.  A.),  66  Fed.    Rep.    124;  Davis  Co.  v.  Rep.  70. 

McKiuney  (Ind.  App.),  38  N.  E.  Rep.  1093. 


42         ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  50. 

body  selected  to  receive  the  money  in  the  manner  required  by  the  terms  of 
the  paper.1  If  no  person,  committee,  or  board  is  designated  in  tho  paper 
the  payment  many  be  enforced  in  the  name  of  the  remaining  subscribers,  or 
by  the  association  as  a  body,  or  by  a  building  committee  appointed  by  the 
association.2  If  the  subscription  paper  stipulate  that  the  sums  subscribed 
would  be  paid  to  any  person  who  would  erect  a  structure  it  is  like  a  note 
payable  to  bearer,  and  the  subscriptions  may  be  collected  by  any  one  who 
builds  in  accordance  with  the  specifications  of  the  paper.3  If  the  associa- 
tion has  been  legally  incorporated  the  action  should  be  in  the  name  of  the 
corporation."  If  one  of  the  subscribers  has  been  authorized  to  act  for  the 
others  and  has  incurred  expense  or  advanced  money  on  the  faith  of  the  sub- 
scriptions he  may  sue  other  subscribers  refusing  to  pay  and  in  his  own  name. 
Such  is  the  case  where  one  has  acted  as  superintendent  or  a  contractor  and 
carried  out  the  plan  contemplated.  A  good  illustration  is  afforded  in  a  case 
where  a  college  class  at  a  class  meeting  voted  to  publish  a  class-book,  the  mem- 
bers voting  or  assenting  to  the  vote  were  held  personally  liable  for  the  ex- 
pense, at  the  suit  of  one  who  printed  it,  under  a  contract  with  a  member  of 
the  class  elected  business  manager  of  the  publication.4  Agreements  by  sub- 
scribers to  pay  a  person  their  respective  subscriptions  upon  the  erection  by 
him  of  a  certain  structure  may  be  enforced  when  the  structure  has  been 
completed,  even  though  the  subscribers  among  themselves  have  not  per- 
formed their  mutual  agreements.6 

Subscribers  are  bound  by  stipulations  and  conditions  contained  in  the 
subscription  paper,  and  none  other  can  be  shown  in  contradiction  to 
them.  The  subscriber  cannot  go  outside  the  written  contract  to  show  dif- 
ferent terms,*  such  as  misrepresentations,  not  incorporated  in  the  sub- 
scription paper.8  In  the  absence  of  fraud,  parol  evidence  is  not  admissible 
to  show  that  the  subscriptions  were  not  to  be  payable  except  on  certain  other 
conditions  not  mentioned  in  the  subscription  paper.  Thus  it  cannot  be 
shown  that  certain  materials  were  to  be  used  in  a  building  to  be  built  out  of 
the  fund  subscribed,7  or  that  the  contract  was  to  be  let  to  the  lowest  bidder,8 
or  that  the  structure  was  to  be  completed  by  a  certain  date.9 

50.  Second  Party  Not  Named,  but  Determined  by  His  Own  Act.  — In 
many  cases  the  contractor  or  second  party  to  the  contract  who  is  to  perform 
or  who  has  performed  the  consideration  is  not  named  in  the  offer,  but  any- 
body who  may  accept  the  offer  or  perform  the  consideration  may  become 
the  contractor.  Such  contracts  are  those  created  by  the  performance  of  the 

1  24  Araer.  &  Eng.  Ency.  Law  339.  'Gerner  v.  Church  (Neb.),   62  N.  W. 

2  24  Amer.  &  Eng.  Ency.  Law,  339,  340.       Rep.  51. 

8  Cooper  v.  McCrimmin,  33  Tex.  383.  8  Cooper  v.  McCrimmin,  33  Tex.  387. 

4Wilcox  v.    Arnold    (Mass.),  39  N.  E.  9 Millers.  Preston,  4  N.  Mex.  314;  and 

Rep.  414.  see  McCormack  v.   Reece,   8  Green  (la.) 

6  Davis  v.  Johnson,  49  Mo.  App.  240.  591. 

6  24  Amer.  &  Eng.  Ency.  Law  341. 

*  See  Sees.  122-131,  infra. 


§  51.]  LAW  OF  CONTRACTS.  43 

consideration  stipulated,  as  by  the  apprehension  and  arrest  of  a  criminal 
under  a  public  offer  of  a  reward,  or  by  being  the  highest  bidder  at  an  auction 
sale,  or  the  lowest  bidder  for  the  performance  of  public  works.  To  become 
a  party  to  such  a  contract  the  person  must  bring  himself  strictly  within  the 
terms  and  conditions  of  the  offer,  or  the  rules  and  regulations  prescribed  at 
the  sale  or  in  the  advertisement  for  bids  or  proposals.  In  accepting  an  offer 
of  reward  a  person  must  know  of  the  offer,  and  perform  the  consideration 
with  such  knowledge,  to  become  a  party  to  the  contract.  In  auction  sales, 
as  in  bidding  for  contract  work,  the  contractor  becomes  the  offerer  ;  and 
if  the  sale  is  "  without  reserve  "  or  the  letting  absolutely  to  the  lowest  bid- 
der, then  his  becoming  a  party  to  the  contract  depends  upon  whether  he  is 
the  highest  bidder  in  the  former  case  and  the  lowest  bidder  in  the  latter 
case.  The  fact  that  his  offer  is  the  highest  in  the  one  case  or  the  lowest  in 
the  other  case  does  not  make  him  a  party  to  the  contract,  but  it  gives  him  a 
right  to  a  contract.  To  become  a  party  to  a  contract  the  offer  of  the  bidder 
must  be  accepted  either  by  the  auctioneer  knocking  down  the  goods,  or  by 
the  formal  acceptance  of  the  proposal,  as  by  awarding  the  contract  to  the 
lowest  bidder. 

The  subject  of  proposals  and  lowest  bidder  is  of  special  interest  to 
readers  engaged  in  construction  work.  Considerable  space  has  been  given  to 
the  subject  in  Chapter  VI.  The  custom  of  letting  contracts  to  the  lowest 
bidder,  which  is  so  universal  in  public  work,  has  been  prolific  of  law-suits. 
The  large  amount  of  money  involved  and  the  desire  on  the  part  of  men  in 
office  to  reward  their  constituents  have  promoted  sharp  practice  of  every  color 
and  design.  Therefore  such  contracts  receive  the  closest  surveillance  of 
the  court  when  they  come  before  it,  and  in  consequence  thereof  the  law 
regarding  contracts  to  lowest  bidders  is  pretty  well  determined. 

51.  Charter  and  Statute  Requirements  Must  be  Strictly  Carried  Out. — 
Where  directions  and  proceedings  are  prescribed  by  which  the  corporation 
is  to  let  the  contract  or  conduct  the  work,  these  directions  and  instructions 
are  imperative,  and  any  neglect  or  deviation  from  them  will  be  fatal  to  the 
validity  of  the  contract.1  In  an  act  which  declared  that  a  board  of  public 
works  "  may  "  advertise  for  proposals  and  the  contract  be  given  to  the  lowe«fc 
bidder  the  court  declared  that  the  word  "may"  must  be  construed  to 
mean  "shall."-9  The  illegality  of  the  contract  may  be  asserted  by  any  party 
or  interest.3 

When  it  was  left  discretionary  with  commissioners  to  employ  their  own 
labor  and  purchase  their  own  materials  and  construct  waterworks,  or  they 

1  Sedgewick    on  Const,   and  Stat.  Law  Pae.  Rep.  693. 

368-378;  Henderson  v.  United  States  Ct.  of  3  Knapp  v.  Swany,56Mich  345  ;  Dillon's 

Claims,  Dec.  Term,  1868,  per  Casey,  C.J.,  Munic.  Corps,  §  382;  Green's  Brice's  Ultra 

pp.  75-83.  Vires  43;  Elmira  Gas  Co.  v.  Elmira,  2  Alb. 

9  McB  ian  ».  Grand  Rapids,  56  Mich.  95;  L.  J.  392;  Randolph  Co.  v.  Jones,  1  Breese 

and  see  Santa  Cruz  Co.  v.  Heaton  (Gal.),  38  (111.)  103. 


44          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  52. 

could  let  the  work  or  portions  of  the  work  by  contract,  it  was  held  that, 
having  elected  to  do  the  work  by  contract,  they  must  let  the  contract 
strictly  as  provided  by  law,  and  material  deviations  from  the  methods 
imposed  rendered  the  contract  void  and  the  contractor  without  remedy.1 
Such  legislative  acts  are  not  directory  but  imperative  in  their  requirements, 
and  when  a  statute  or  charter  declares  that  work  is  to  be  advertised,  plans 
and  specifications  prepared  and  published,  bids  invited,  and  the  contract 
awarded  to  the  lowest  bidder  it  is  a  formality  that  cannot  be  dispensed 
with.2  * 

52.  No  Eecovery  can  be  Had  for  Work  and  Materials  Furnished  for 
Public  Work  Contrary  to  Law. — Any  irregularity,  gross  mistake,  fraud  and 
collusion,  or  any  circumstance  that  tends  to  foster  favoritism  or  to  prevent 
fair  and  honest  competition,  may  suffice  to  render  the  contract  void  and  to 
deprive  the  contractor  of  any  returns  for  his  labor  or  materials.     This  must 
necessarily  work  great  hardships  to  a  contractor,  it  is  imposing  upon  him 
great  burdens  to  ascertain  and  watch  the  deliberations  of  a  board  or  city 
council;  it  is  impossible  to  ascertain  the  mistakes  and  collusions  of  their 
officers  and  agents; — but  the  courts  maintain  that,  though  the  law  may  work 
hardships,  it  is  better  that  an  individual  should  occasionally  suffer  from  the 
mistakes  of  public  officers  or  agents  than  to  adopt  a  rule  which,  through 
improper  combinations  and  collusions,  might  be  turned  to  the  detriment  or 
injury  of  the  public.3     This  rule  may  seem  unjust  to  a  contractor  who,  with- 
out having  considered  whether  the  law  has  been  complied  with  or  not,  has 
performed  labor  and  furnished   materials   for   a   public  corporation,  and 
expects  compensation  therefor,  the  same  as  if  they  had  been  done  or  fur- 
nished for  a  private  individual.     But,  nevertheless,  the  authorities  hold  that 
a  contractor  when  dealing  in  a  manner  expressly  provided  by  law  must  see 
to  it  that  the  law  is  complied  with.     Where  work  is  done  for  a  city  without 
authority  the  fact  that  the  city  is  benefited  thereby  does  not  establish  its 
liability  to  pay  for  it.4 

53.  The   Law  will  Not  Imply  a   Contract  which  the  Law  Forbids. — 
The  general  doctrine  unquestionably  is  that  when  one  receives  the  benefit 
of  another's  work  or  property  he  is  bound  to  pay  for  the  same,  and  this  doc- 
trine  applies   as   well   to   corporations   as   to  individuals   in   cases  where 
there  is  no  restriction  imposed  by  law  upon  the  corporation  against  making 
in  direct  terms  a  contract  like  the  one  sought  to  be  implied; 6     but  where 
there  exist  legal  restrictions  which  disable  a  corporation  from  agreeing  in 

1  Dickinson  «.  City  of  Poughkeepsie,  75      96  U.  S.  691  [1877];  Nash  v.  St.  Paul,  11 
N.  Y.  65.  Minn.    174     [1866];     Burrell     v.    Boston 

2  Davi^on  v.  Gill,  1  East  64-71;  People  v.       (Mass  ),  2  Clifford  590  [1867]. 

Allen,  6  Wend.  486;  Briggs  v.  Georgia,  15  *  Springfield  M.  Co.  «.  Lane  Co.,  5  Oreg. 

Vern    72.  265. 

3  Whiteside  v.  United  States,  93  U.   S.  5  Cases  collected,  29  Amer.  &  Eng.  Ency. 
247-257  [1876];  Hawkins  v.  United  States,  Law  864. 

*  See  Chap.  VI,  Sec.  138,  infra. 


[§  53.  LAW  OF  CONTRACTS.  45 

express  terms  to  pay  money  the  law  will  not  imply  any  such  agreement 
against  the  corporation.1  The  law  is  based  upon  motives  of  economy,  and 
orginated  perhaps  in  some  degree  from  distrust  of  officers  to  whom  the 
duty  of  making  contracts  for  public  work  was  committed.  If  contractors 
were  allowed  to  recover  the  reasonable  value  of  their  work,  or  were  allowed 
compensation  to  the  extent  that  the  corporation  is  benefited,  it  would  afford 
a  means  of  evading  the  law.  Contractors  could  combine,  conspire  to  not  bid 
against  one  another,  bribe  public  officers  to  accept  their  proposals,  and  if 
detected  recover  the  reasonable  value  of  their  work  and  materials,  and  thus 
defeat  the  very  object  of  the  statute.2  *  No  implied  contract  can  be  inferred 
from  the  fact  that  the  structure  is  subsequently  used  by  the  public.3 

Attempts  have  been  made  to  give  detailed  estimates  of  the  kinds  and 
quantities  of  materials  and  work  required,  and  to  omit  from  the  specifications 
and  plans  such  materials  and  work  as  may  be  encountered  that  would  greatly 
increase  the  cost  and  which  are  difficult  to  determine  in  advance,  it  being 
the  intention  to  have  such  work  done  by  outside  parties  or  by  the  contractor 
at  a  reasonable  price.  Such  materials  are  hard-pan,  rock,  and  quicksand. 
If  under  the  statute  contracts  can  only  be  let  to  the  lowest  responsible  bidder, 
then  no  other  manner  of  contracting  can  be  legal,  and  any  bid  or  contract 
which  leaves  the  payment  for  a  substantial  part  of  the  improvement  con- 
templated, either  in  work  or  material,  to  private  agreement,  is  contrary  to 
express  provisions  of  law,  and  void.4  It  seems  that  if  the  extent  of  such 
extra  work  and  material  cannot  possibly  be  ascertained  in  advance,  even 
approximately,  it  may  be  proper  to  mention  such  contingencies  in  the  speci- 
fications and  contract  and  to  provide  for  payment  for  such  extraordinary 
contingencies  at  what  the  extra  work  is  reasonably  worth;  by  measure  or 
weight,  as  per  cubic  yard  or  per  ton;  but  such  a  course  can  never  be 
necessary  where,  by  the  exercise  of  reasonable  diligence  and  suitable 
investigation  by  the  city  surveyor  or  other  proper  official,  the  condition  of 
things  affecting  the  cost  of  construction  can  be  ascertained  beforehand. 
It  can  be  justified  only  when  the  true  condition  of  things  cannot  be  ascer- 
tained.6 If  a  partial  compliance  were  sanctioned,  then  there  would  be  no 
safeguard  to  the  public  interests  in  the  requirements  of  the  statute.  If  a 
part  of  a  contract  be  exempted  from  the  force  of  the  law,  a  small  and  com- 
paratively unimportant  portion  of  the  work  might  be  advertised  and  com- 

1  Brady  v.  The  Mayor,  2  Bosworth  173;  Pratt  v.  Swan  ton,  15  Vt.  147;  Murphy  v. 
Zottmanv.  San  Francisco,  20  Gal.  102-105;  Albina  (Oreg.),  29  Pac.  Rep.  355   [1892]. 
Springfield   Milling    Co.    v.    Lane  Co.,    5  Welson  v.  School  District,  32  N.  H.  118;  1 
Oregon  265  [1874];  Berlin  Iron  Bridge  Co.  Dill.  Mun.  Corp.,  §  464;    many  cases  in 
v.  San  Antonio,  62  Fed.  Rep.  882.  15  Amer.  &  Eng.  Ency.  Law  1084-5. 

2  Bare  v.  Village  of  G..  72  KY.  463-472;  4  McBrian  v.  Grand  Rapids,  56  Mich.  95. 
McBrian  v.  Grand  Rapids,  56  Mich.  95.  5  Parr  v.  Village  of  Greenbush,  112  N". 

3  Taft  v.    Montague,    14   Mass.    281,    a  Y.  246  [1889];    Brady  «.  Mayor  of  New 
streeti;  McDonald  v.  Mayor,  68  K  Y.  23;  York,  20  N.Y.  317-318;  McBrian  v. Grand 
Davis    v.    School    District,    24  Me.    349;  Rapids,  56  Mich.  95. 

*  See  Sec.  43  and  Sees.  136-140,  infra. 


46          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§54. 

petition  invited,  and  the  great  bulk  be  left  to  private  agreement  between 
public  officers  and  the  contractor. '  * 

It  is  thought  advisable  to  mention  some  cases  of  interest  to  engineers  and 
contractors  in  which  contracts  have  been  held  void  and  inoperative.  The 
books  are  full  of  cases  where,  contrary  to  law,  contracts  have  been  awarded 
to  parties  who  were  not  the  lowest  bidders,  and  it  is  fully  established  that 
the  contract  in  such  a  case  is  void,  and  that  the  contractor  cannot  recover 
for  work  done  or  materials  furnished,  f 

54.  Irregularities  Need  Not  be  Caused  by  Contractor.— Irregularities  in 
awarding  the  contract,  though  not  encouraged  or  solicited  by  the  contractor,, 
may  destroy  the  validity  of  the  contract  when  subsequently  discovered. 
Thus  where  one  of  the  competitors  in  bidding  for  a  public  work  was  per- 
mitted by  the  engineer,  to  whom  the  proposals  were  referred  for  calculation 
and  comparison,  to  alter  his  bid  so  as  to  make  it  appear  lower  than  that  of 
the  others,  and  then  after  the  acceptance  of  his  bid,  a  contract  was  made  at 
different  prices,  and  with  material  clauses  inserted,  not  contemplated  or 
offered  the  other  bidders;  it  was  held  that  the  contract  was  unauthorized 
and  void,  and,  further,  that  no  recovery  could  be  had  for  the  work  per- 
formed.3 The  misfortunes  of  the  contractor  are  thus  augmented  when  it 
lies  in  the  power  of  a  dishonest  or  careless  engineer  to  render  his  contract 
invalid.  It  has  been  so  held  when  an  engineer  has  been  negligent,  dishonest, 
or  collusive  in  his  estimates,  and  it  turned  out  that  the  successful  bidder 
was  not  the  lowest  bidder,  that  the  law  was  not  complied  with,  and  that 
there  was  no  basis  for  a  valid  contract.3 

The  facts  of  the  case  cited,  briefly  stated,  are  that  the  estimate  of  the 
engineer  proved  no  better  than  a  random  guess,  and,  like  such  cases,  was  far 
from  being  correct.  The  engineer  reported  the  quantities  as  10,000  cubic 
yards  of  earth  and  20,000  cubic  yards  of  rock,  and  the  successful  contractor 
bid  81.62-J  for  earth  and  2  cents  for  rock  excavation,  and  in  comparison 
with  others  he  was  the  lowest  bidder.  As  it  turned  out,  there  were  about 
20,000  cubic  yards  of  earth  and  10,000  cubic  yards  of  rock,  which  made  him 
one  of  the  highest  instead  of  the  lowest  bidder.  The  contractor  cleared 
about  $12,000,  or  20  to  30  per  cent,  above  the  fair  value  of  the  work.  The 
court  said  that  such  an  estimate,  in  connection  with  a  bid  of  five  times  the 
actual  cost  of  earthworks  and  less  than  1£  per  cent,  of  actual  cost  of  rock 
excavation,  was  enough  to  show  on  its  face  that  the  contract  was  the 
result  of  fraud  and  collusion.3 

To  engineers  and  contractors  this  estimate  and  bid  may  not  seem  so 
extraordinary  nor  such  clear  evidence  of  fraud.  When  it  is  considered  that 
no  appropriation  or  other  provision  had  been  made  for  engineering  investi- 

1  McBrian  v.  Grand  Rapids,  56  Mich.  95.          *  In  re  Anderson,  109  N.  Y.  554. 

2  Dickinson  v.  City  of  P.,  75  N.  Y.  65. 

*  See  Cha  .  VI,  Sees.  136-150,  infra.  \  See  Sees.  132-199,  infra. 


§  54.]  LAW  OF  CONTRACTS.  47 

gation,  and  that  no  tests  whatever  were  made  before  letting  the  work  to' 
ascertain  the  quantities  of  rock  and  earth  respectively,  the  estimate  is  uot 
so  extraordinary.  And  men  of  experience  engaged  in  construction  know 
that  facilities  for  undertaking  and  handling  work,  the  co-operation  of  con- 
tractors, the  joint  performance  of  two  dependent  jobs,  in  which  the  work 
done  upon  one  counts  upon  the  other,  would  all  tend  to  make  a  wide  difference 
in  the  prices  bid.  For  earth  that  must  be  hauled  to  the  limits  of  a  city  or 
to  distant  dumping-grounds  they  would  require  a  good  price,  while  other 
contractors  who  have  contracts  for  filling  an  adjoining  lot  at  a  good  figure 
would  be  glad  to  secure  the  earth  for  the  digging;  and  likewise  with  rock, 
contractors  who  had  immediate  use  for  stone  in  the  vicinity  could  ex- 
cavate or  quarry  it  at  a  mere  nominal  price.  Whether  such  conditions 
existed  is  not  known,  but  to  an  engineer  the  facts  related  would  alone 
hardly  be  conclusive  evidence  of  fraud.  If,  however,  there  had  been  a 
bona  fide  effort  to  comply  with  the  ordinance,  and  there  had  been  an  honest 
mistake  or  error  as  to  the  quantities,  the  case  would  have  been  decided 
differently.1 

In  a  more  recent  case  in  the  same  state,  with  almost  precisely  the  same 
facts  and  circumstances,  it  was  held, — that  the  contract  was  binding;  that, 
though  the  contractor  in  making  his  bid  knew  that  the  estimate  misstated 
certain  items,  and,  in  bad  faith  and  with  intent  to  profit  by  the  ignorance 
of  the  engineer,  made  an  unbalanced  bid,  yet,  there  being  no  fraudulent 
collusion  between  him  and  the  engineer  or  other  officer  of  the  corporation,  he 
was  entitled  to  recover,  and  had  a  right  to  the  benefit  of  his  own  knowledge, 
honestly  acquired,  so  long  as  he  did  nothing  to  mislead  or  deceive  the  city. 
It  was  held  that  the  validity  of  such  a  contract  did  not  depend  upon  the 
accuracy  of  the  officer  charged  with  the  duty  of  making  the  estimates,  but 
upon  an  honest  effort  on  his  part  to  be  accurate;  that  the  lowest  bidder 
under  the  esti  ates  is  the  lowest  bidder  under  the  law;  that  the  city  could 
not  hold  the  contractor  to  a  performance  and  then  annul  the  contract  be- 
cause the  accurate  result  so  varied  from  the  estimates  as  to  make  the 
accepted  bidder  higher  than  the  others.2 

The  decision  in  this  case,  it  is  thought,  will  better  meet  the  views  of 
engineers  and  contractors,  but  it  does  not  overrule  the  preceding  case;  and 
if  the  officers  of  a  corporation  have  acted  dishonestly,  collusively,  or  even 
negligently,  in  express  violation  of  the  statute  or  ordinance,  the  contract 
may  be  declared  void.3 

In  another  case,  in  which  the  prices  for  curbing  and  guttering  were 
about  four  times  those  of  other  bidders,  and  the  bid  offered  to  do  flagging 
tor  nothing,  which  was  the  largest  portion  of  the  expense,  the  case  was 

1  In  re  Anderson,  109  N.  Y.  554.  8  Accord  McMullen  v.  Hoffman  (C.  C.), 

9  Reilly  v.  Mayor,  etc.,  of  N.  Y.,  Ill  N.      75  Fed.  Rep.  547. 
Y.  473. 


48          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    ["§  55. 

regarded  as  free  from  fraud,  and  ifc  was  held  that  the  prices  alone  were  not 
sufficient  reason  for  declaring  the  contract  invalid.1 

55.  Precautions  to  be  Taken  by  Contractors  with  Regard  to  Parties  and 
Their  Powers. — In  conclusion  it  is  submitted  that  when  a  contract  is  made 
and  entered  into  "  by  and  through  commissioners  or  boards  of  public  works, 
government  or  city  officers  or  engineers,  or  agents  of  a  public  corporation  " 
it  is  imperative  that  the  parties  study  the  act  or  statute  to  which  the  cor- 
poration or  board  owes  its  existence;  that  the  constitutionality  of  the  act 
be  considered;  that  the  charter  granted  be  consulted  to  see  that  the  powers 
and  privileges  of  the  corporation  comprehend  the  proposed  improvement; 
that  the  deliberations  and  actions  of  the  city  council  or  board  have  been 
legal  and  constitutional  and  within  the  strict  interpretation  of  the  act;  that 
the  indebtedness  limited  by  the  act  has  not  been  exceeded,  nor  the  appro- 
priation been  exhausted ;  that  the  power  to  make  and  enter  into  contracts 
has  not  been  specifically  given  by  the  act  to  some  particular  officer,  and 
that  it  is  a  power  that  can  be  delegated ;  that  the  officer  or  agent  who  assumes 
to  act  has  been  duly  appointed,  elected,  and  authorized  to  act  on  behalf  of 
the  corporation  or  board;  that  his  acts  are  within  the  authority  so  dele- 
gated or  bestowed;   that  such  officer  or  engineer  has  in  honesty  and  in 
good  faith  performed  his  duties  according  to  law;  that  the  work  itself  is 
not  forbidden  by  statute,  ordinance,  or  public  policy;  and  finally  that  the 
property  upon  which  the  work  is  to  be  performed   has   been  acquired, 
accepted,  or  condemned  pursuant  to  the  powers  given  and  the  laws  govern- 
ing the  corporation.     Then,  and  only  then,  can  a  contractor  feel  secure  in 
the  prosecution  of  his  work  and  that  he  will  be  rewarded  for  his  labors. 

56.  Source  of  Power. — "  By  virtue  of  the  power  vested  in  him  [them]" 
-etc.*    The  importance  of  this  clause  must  be  evident  from  what  has  pre- 
ceded.    Every  opportunity  should  be  given  the  contractor  to  investigate 
the  conditions  under  which  he  enters  into  the  contract,  and  to  inquire  into 
the  legality  of  his  undertakings. 

57.  Residence   of   Parties — Place   Where    Contract  is  Executed. — "By 

and  betiveen of  the  City  of 

County  of State  of " 

Here  should  be  inserted  the  full  name  of  the  person,  partnership,  or  cor- 
poration that  assumes  to  act  and  be  responsible  for  the  performance  or 
•execution  of  the  works  undertaken.     The  contract  should  give  the  full  and 
correct  name  under  which  the  parties  do  business  if  a  partnership,  and  if  a 
corporation  the  precise  title  under  which  it  was  incorporated. 

58.  Laws  Governing  Contract  May  be  Determined  by  the  Place  Where 
Contract  was  Made  or  by  the  Residence  of  the  Parties. — It  is   important 
that  the  residence  of  the  parties  be  given.    Corporations  should  be  described 

1  Matter  of  N.  Y.  P.  E.  P.  S.,  75  N.  Y.  324  [1878]. 
*  See  Sec.    29,  supra. 


§58.]  LAW  OF  CONTRACTS.  49 

very  carefully,  as  the  question  of  jurisdiction  to  which  they  belong  is  an 
important  one  in  serving  notices,  bringing  suits,  and  in  all  legal  proceed- 
ings. The  personal  ability  or  disability  of  a  party  to  make  a  contract  is  often 
•decided  by  the  law  of  the  party's  domicile,1  and  the  validity  of  an  assign- 
ment for  the  benefit  of  creditors  is  tested  by  the  law  of  the  assignor's  domicile.11 
The  law  of  the  owner's  domicile  determines  whether  his  property  is  real  or 
personal,  as  well  as  the  right  to  its  possession  and  the  validity  of  its  transfer.3 
The  residence  of  the  parties,  the  place  in  which  the  contract  is  executed 
.and  delivered,  and  the  location  of  the  subject-matter  of  the  contract  or  the 
place  of  performance  may  one  and  all  have  much  to  do  in  determining  the 
validity,  interpretation,  enforcement,  etc.,  of  the  contract,  and  the  customs 
and  usages  under  which  the  work  shall  be  executed  and  paid  for.  The  law 
that  should  govern  is  the  law  by  which  the  parties  intended  to  be  governed, 
and  if  that  be  expressed  it  will  govern.  If  it  be  not  expressed,  then  there 
are  certain  presumptions  which  are  conclusive  of  the  parties'  intention. 
These  are :  1.  "  That  an  agreement  to  perform  an  act  in  a  certain  place  is 
made  in  reference  to  the  law  of  that  place.  2.  That  an  agreement  to  per- 
form an  act  without  designating  a  place  for  performance  is  presumed  to 
be  made  with  reference  to  the  law  of  the  place  at  which  the  agreement  was 
made."  If  it  appear  from  the  face  of  a  contract  made  in  one  place  that  it  is  to  be 
performed  in  another  place  its  validity,  nature,  obligation,  and  interpretation 
will  be  determined  by  the  law  of  the  place  of  performance,  but  not  its 
legality,  it  seems.4  If  no  place  of  performance  is  designated  in  the  con« 
tract,  or  it  may  be  performed  anywhere,  it  will  be  governed  oy  the  law  of 
the  place  where  it  was  made.5  A  contract  made  in  one  state  to  be  per- 
formed partly  in  that  state  and  partly  in  other  states  will  be  governed  by 
the  law  of  the  place  where  made  ;8  but  when  a  contract  was  made  in  one 
state  for  a  building  to  be  erected  in  another  state  the  law  of  the  state  where 
the  contract  was  performed — i.  e.,  the  house  built— held  with  regard  to 
mechanics'  liens.7  In  building  and  construction  contracts  the  place  of  per- 
formance is  usually  named  in  the  description  of  the  subject-matter,  the  site 
or  locality;  but  whether  the  rule  will  hold  hard  and  fast  may  be  doubted, 
for  many  exceptions  and  contrary  decisions  have  arisen  under  the  conflict  of 
laws  of  different  places.  If  the  full  intention  of  the  parties  cannot  be  ascer- 
tained from  the  contract,  the  custom  or  usage  of  the  place  where  the  con- 
tract was  made  may  be  shown  to  assist  in  its  interpretation.  If  free  from 
obscurity  the  intention  as  expressed  will  hold  unless  it  be  proved  that  the 

1  Matthews  v.  Murcheson,  17  Fed.  Rep.  6  3  Amer.  &  Eng.  Ency.  Law  544,  561-2  ; 
760  [1883]  ;    Spearman  v.   Ward,  8  All.  Bauk  v.  Hall  (Pa.),  24  Atl.  Rep.  665  ;  ao 
Rep.   430  ;    3  Amer.  &  Eng.  Ency.  Law  cord  Leake's  Digest  of  the  Law  of  Con- 
573.  tracts    207 ;    Cartwright  v.   Railroad   Co. 

2  3  Amer.  &  Eng.  Ency.  Law  573.  (Vt.),  9  Atl.  Rep.  370  [1887] 

3  3  Amer.  &  Eng.  Ency.  Law  574.     .  6  3  Amer.  &  Eng.  Ency.  Law  560. 

4 Brown  v.  Amer.  Finance  Co.,  31  Fed.          '  Bnrder  v.   Carnie,  44  N.  J.  Law  208; 
Rep.  516  ;  West.  Un.  Tel.  Co.  «.  Eubank      Thurman  v  Kyle,  71  Ga.  628. 
(Ky.),  38  S.  W.  Rep.  1068. 


50          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  58 

interpretation  would  be  different  according  to  the  law  of  the  place  when* 
the  contract  was  executed. l  When  it  is  not  clear  that  the  contract  is  to  be 
performed  in  a  place  designated,  it  is  a  general  rule  that  the  rate  of  inter- 
est, the  penalties  of  usury,  the  ceremonies  to  be  performed,  such  as  those 
required  by  the  registry  laws,  the  statute  of  frauds,  and  special  statutes  per- 
taining to  the  subject-matter,  all  depend  upon  the  laws  of  the  place  where 
the  contract  is  drawn,  signed,  and  delivered,  or  where  it  is  purported  to  have 
been  entered  into.  It  is  often  said  that  if  a  contract  is  valid  and  binding 
where  made,  it  is  valid  and  binding  everywhere,  and  if  void  or  illegal  where 
made,  it  is  generally  held  void  and  illegal  everywhere  else.2  This  is  gen- 
erally so  unless  the  contract  is  contrary  to  good  morals  or  repugnant  to  the 
policy  of  the  state  where  it  is  to  be  enforced.3  A  contract  that  is  valid  when 
made  is  not  affected  by  a  change  in  the  public  policy  of  the  state;4  and  it  has 
been  held  that  where  a  contract  is  valid  at  the  time  when  it  is  sought  to  be 
enforced  the  fact  that  it  was  against  public  policy  when  made,  is  immaterial.6 
The  operation  of  a  contract  and  the  rights  of  the  parties  under  it,  so  far  as 
such  rights  depend  upon  the  construction  and  validity  of  the  agreement  or 
on  questions  of  sufficiency  of  performance,  are  governed  by  the  laws  of  the 
place  where  the  suit  is  brought,6  as  are  also  questions  of  the  remedy  to  be 
allowed  and  the  manner  of  enforcing  the  contract.  A  discharge.of  a  con- 
tract by  the  law  of  the  place  where  it  was  made  is  generally  held  a  dis- 
charge everywhere;  but  a  discharge  by  the  law  of  a  place  where  it  was  not 
made  or  to  be  performed  will  not  be  a  discharge  of  it  in  other  countries/ 
All  suits  must  be  brought  within  the  time  prescribed  by  the  statute  of  limi- 
tations which  prevails  in  the  place  where  the  action  is  brought,  yet  the  law 
of  the  place  where  the  contract  was  made  may  limit  the  time  in  which  a 
a  suit  may  be  brought,  for  no  action  can  be  brought  in  another  place  where  a 
greater  length  of  time  is  allowed  or  where  there  is  no  limitation  at  all.8 
The  place  of  contract  is  not  the  place  where  a  note  or  bill  is  made,  drawn, 
or  dated,  but  the  place  where  it  is  delivered  from  drawer  to  drawee,  from 
promisor  to  payee,  from  indorser  to  indorsee.9  A  contract  is  made  and 
determined  by  the  place  in  which  it  was  completed.  Therefore  a  contract 
made  by  a  traveling  agent  which  required  ratification  by  his  employer  was 
deemed  to  have  been  made  at  the  place  where  tho  ratification  was  given. 10 
The  author  has  dwelt  upon  this  subject  to  show  the  necessity  of  describing 
the  parties,  their  residence,  and  the  place  where  the  contract  is  entered  into 
and  to  be  performed,  more  than  for  the  purpose  of  explaining  the  laws  by 

1  3  Amer.  &  Eng.  Ency.  Law  561.  &  St.  P  Ry.  Co.  (C.  C.),  62  Fed.  Rep.  904. 

2  Winter  «.  Baker,  50  Barb.  432  [1867]  ;          6  3  Amer.  &  Eng.  Ency.  Law  575. 

3  Amer.  &  Eng.  Ency.  Law  552-3.  7  3  Amer.  &  Eng.  Eucy.  Law  581-2. 

3  3  Amer.  &  Eng.  Ency.  Law  554  ;  Union          8  3  Amer.  &  Eng.  Ency.  Law  583-4.     See 
Locomo.  Exp.  Co.  v.  Erie  Ry.  Co.,  37  N.  J.      other  cases  cited. 

Law  23  [1873].  9  Overt  on    v.    Bolton,     9    Heiskell    762 

4  Stephens  v.  Southern  Pac.  Co.  (Cal.),  41       [1872]. 

Pac.  Rep.  783.  I0  Sell  uenf  eld  t    v.   Junkerman,  20  Fed. 

5  Hartford  Fire  Ins.  Co.  v.  Chicago,  M.      Rep  357  [1884]. 


§  59.]  LAW  OF  CONTRACTS.  51 

which  the  contract  will  be  governed.  To  do  the  latter  in  a  few  pages  or 
even  chapters  would  be  out  of  the  question,  for  it  embraces  the  whole  sub- 
ject of  conflict  of  laws,  one  of  the  most  confused  and  perplexing  sub- 
jects in  the  study  of  law. 

59.  Time  When  Contract  was  Made  or  Entered  Into — Day  or  Date. — 
Of  equal  importance  is  the  date  of  a  contract,  which  is  usually  inserted  in 

the  following  phrase:  "This day  of in  the  year "  Every 

engineering,  as  well  as  legal,  document  or  memorandum  should  be  correctly 
dated,  so  much  often  depends  upon  the  day  on  which  it  was  made.  The 
validity,  enforcement,  and  time  of  completion  of  a  contract  are  sometimes 
determined  by  the  day  or  hour  when  it  was  delivered.  If  a  longer  period 
than  that  fixed  by  law  has  elapsed  since  its  breach  or  execution  both  parties' 
rights  may  have  been  forfeited,  and  the  contract  be  dead  and  worthless. 
This  suggests  the  question  as  to  what  completes  the  contract,  or  at  what 
time  does  it  become  binding.  A  written  contract  or  specialty  is  not  binding 
until  delivered.1  It  has  therefore  frequently  been  held  that  a  deed  or  bond 
or  note  signed  on  Sunday,2  but  delivered  on  some  other  day  of  the  week,  is 
valid  and  binding,  since  such  instruments  take  effect  from  the  time  of  de- 
livery; and  the  deed  may  have  been  acknowledged  on  Sunday.3  The  same 
has  been  held  of  other  contracts  in  writing,  as  an  order  for  goods4  written 
and  signed  on  Sunday,  but  dated,  delivered,  and  filed  on  a  secular  day;  a 
contract  to  finish  a  court-house  signed  by  one  party  on  Sunday.6  To  render 
a  contract  void  because  made  on  Sunday  it  must  have  been  closed  or  per- 
fected on  that  day."  The  fact  that  negotiations  leading  up  to  the  contract 
took  place,  or  that  terms  were  agreed  upon,  on  Sunday  does  not  render  the 
contract  invalid  if  it  were  completed  on  a  week-day.7  On  the  other  hand  a 
proposition  of  purchase  and  sale  made  on  a  week-day,  but  completed  and 
delivered  on  Sunday,  is  void.8 

If  a  contract  must  be  made  upon  a  Sunday  or  legal  holiday  the  terms 
may  be  agreed  upon,  the  instrument  drafted,  signed,  sealed,  and  acknowl- 
edged on  Sunday,  and  then  delivered  upon  some  succeeding  day  not  a 
holiday,  postdating  the  contract  to  agree  with  the  date  of  delivery.  It 
seems  that  the  contract  cannot  be  delivered  on  Sunday  to  another  as  an 
agent  to  deliver  upon  a  week-day,  for  when  a  note  was  signed  by  two 
makers  on  Sunday  and  delivered  by  one  only  on  a  week-day  it  was  held  not 
to  bind  the  other  signer,  as  he  could  not  authorize  a  delivery  on  Sunday.9 
Under  such  a  law  it  would  seem  legally  proper  for  the  party  who  could  not 

'McFarland  v.  Sikes  (Conn.),  3  N.  E.  6  Foster  v.  Wor ten,  67  Miss.  540;  Moseley 

Rep.  252.  v.  Van  Hoser,  6  Lea  (Tenn.)  286. 

8  24  Amer.  &  Eng.  Ency.  Law  555,  566,  7  Cases  in  24  Amer.  &  Eng.  Ency.  Law 

and  cases  cited.  566. 

3  24    Amer.    &  Eng.   Ency.    Law    555,  8  Smith  «.  Foster,  41  N.  H.  220. 

note.  "Bishop  on  Contracts  (Enlg.  ed.)  §  544; 

4  Cameron  v.  Peck   37  Conn.  556.  Davis  v.  Barger,  57  Ind.  54;  and  other  cases 
'Behan  v.  Ohio,  75  Tex.  87.  cited  in  24  Amer.  &  Eng.  Ency.  Law  566. 


52          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  59. 

be  present  on  a  day  following,  to  take  his  copy  of  the  contract  with  him,  and 
to  make  a  delivery  to  the  other  party  by  messenger,  express,  or  through  the 
post-office. 

In  some  jurisdictions  contracts  made  on  Sunday,  and  therefore  invalid, 
may  be  ratified  on  some  succeeding  week-day;1  but  there  are  many  cases 
that  hold  that  the  ratification  must  amount  to  the  making  of  a  new  con- 
tract. The  diversity  of  opinions  is  due  to  the  different  statutes  of  the  states, 
and  to  the  view  that  the  courts  have  taken  of  Sunday  contracts. 

It  is  suggested  that  courts  will  have  little  sympathy  with  contracts  made 
and  executed  on  Sunday,  inasmuch  that  in  nearly  all  Christian  countries 
and  states  all  labor  and  business  are  required  to  be  laid  aside  on  the  Sabbath 
except  such  work  as  is  necessary  or  is  an  act  of  charity,  and  parties  who  de- 
liberately transgress  the  law  will  have  little  consideration  when  they  seek 
the  law's  protection.  The  courts  therefore  frequently  refuse  to  have  any- 
thing to  do  with  cases  where  Sunday  contracts  have  been  made,  holding  that 
the  party  complaining  is  as  bad  as  the  one  complained  of,  denying  either 
party  any  rights  under  the  contract,  and  leaving  the  parties  where  their 
illegal  transaction  has  put  them. 

As  to  what  is  necessary  construction-work,  there  are  few  cases  reported  in 
the  books.  If  property  be  exposed  to  imminent  danger  or  peril  it  is  work 
of  necessity  to  preserve  it.8  It  has  therefore  been  held  proper  to  gather 
and  handle  grain,  hay,  sap,  etc.,  on  Sunday  that  were  liable  to  spoil  or  be 
damaged,  and  to  save  logs  scattered  by  storm.  A  flow  of  two  barrels  of  salt 
water  a  day  into  an  oil-well  was  held  not  so  injurious  that  it  would  make 
the  pumping  of  it  out  on  Sunday  necessary  work,  and  relieve  the  operator 
irom  the  penalty  imposed  by  the  Sunday  law.3  Repairs  to  a  mill,4  as  the 
cleaning  out  of  a  wheel-pit,  on  Sunday,  so  as  to  prevent  stopping  on  week- 
days, and  thereby  shutting  down  a  mill  employing  many  hands,  was  held 
not  a  work  of  necessity.5  It  has  been  held  that  a  contractor  was  not 
chargeable  with  negligence  for  refusing  to  work  on  Sunday  when  by  so 
doing  and  constructing  a  sewer  he  could  have  avoided  injury  to  a  brick 
wall.6 

One  is  not  safe  in  undertaking  any  work  on  Sunday  that  can  as  well  be 
done  on  a  week-day.T  The  fact  that  a  creditor  wished  to  go  away  immedi- 
ately does  not  make  it  necessary  to  sign,  deliver,  or  accept  on  Sunday  an 
order  to  pay  the  debt.8  If  one  contract  to  servo  another  in  Alaska,  and  to 
his  whole  time,  attention,  capacity,  and  energy  to  the  business,  and  to 
as  directed,  at  all  times,  at  any  place,  Sundays  and  holidays  not  ex- 

1 24  Amer.  &  Eng.  Ency.  Law  561,  570,  6  Oleson  v.  City  of  Plattsmouth  (Neb.), 

•571-  52  N.  W.  Rep.  848. 

*Parmalee  v.  Wilks,  22  Barb.  (N.  Y.)  'Bucher  v.  Fitchburg  R.  Co  ,  131  Mass. 

•540.  156,  125  TJ.  S.  555;  Holcomb  D.  Danby,  51 

3  Com.  v.  Funk,  9  Pa.  Co.  Ct.  Rep.  277.  Vt.  428. 

'Hamilton?'.  Austin,  62  N.  H.  575.  8  Mace  *>.  Putnam,  71  Me.  238;  and  see 

5McGrath  v.  Merwin,  112  Mass.  467.  Meader  v.  Whit?,  66  Me.  90. 


§59.]  LAW  OF  CONTRACTS.  53 

cepted,  he  may  be  required  to  work  on  Sundays,  and  may  be  discharged  for 
refusing  to  do  so.1 

If  a  contract  be  not  dated,  the  day  on  which  it  was  made  and  entered 
into  and  delivered  may  be  proved  by  evidence.  The  omission  of  the  date  is 
not  fatal  to  the  validity  of  a  simple  contract,  nor  of  a  deed,  though  it  may 
affect  the  negotiability  of  a  bill  or  note.2  If  an  instrument  be  dated  the  date- 
inserted  will  be  regarded  as  the  true  date  unless  otherwise  proven.3 

1  Nelson  v. Pyramid  H.  P.  Co.  (Wash.),  30          f  5  Amer.  &  Eng.  Ency.  Law  77. 
Pac.    Rep.    1096;    other  cases  accord  and         3  See  5  Amer.  &  Eng.  Ency.  Law  80,  81- 
contra  in  24  Amer.  &  Eng.  Ency.  Law  559.      92. 


CHAPTER    II. 

LAW  OF  CONTRACTS.    ESSENTIAL  ELEMENTS  OF  A  CONTRACT.    THE 

CONSIDERATION. 

THE    THING    FOR    WHICH    THE    ACT    IS    DONE.      CONTRACTOR    CONSENTS    TO 
DO   SOME   LAWFUL   ACT:    FOR   WHAT? 

60.  The  Consideration. — An  undertaking  or  agreement  is  not  a  contract 
that   can  be  enforced  in   our  courts  of  law  unless  it  has  been  made  or 
assumed  for  a  consideration.     There  must  be  a  clear  understanding  between 
the  parties,  and  there  must  be  some  consideration  for  the  obligations  as- 
sumed by  both  parties,  something  given  in  exchange  for  the  obligation, 
that,  in  the  theory  of  the  law  at  least,  is  commensurate  with  the  obligation 
undertaken.1     The  law  will  not  permit  a  person  to  assume  contract  obliga- 
tions for  nothing.     There  must  be  something  given  in  exchange,  and  that 
something,  so  far  as  it  is  the  policy  of  the  law  to  judge,  must  be  legally 
equivalent-  to  the  obligation  assumed. 

The  consideration  of  a  contract  may  be  described  as  that  which  either 
party  suffers,  surrenders,  gives,  does,  or  refrains  from  doing,  or  promises  or 
pledges,  for  the  obligation  which  he  receives  in  return  from  the  other 
party.  It  may  be  that  which  is  given  or  promised  by  one  party  for  that 
which  is  received  or  undertaken  or  relinquished  by  the  other  party.  The 
consideration  may  consist  of  some  right,  profit,  interest,  or  benefit  accruing 
to  one  party,  or  it  may  be  some  forbearance,  detriment,  loss,  or  responsi- 
bility endured,  suffered,  or  undertaken  by  the  other  party.  The  thing  given 
or  surrendered  may  be  any  material  thing  of  value,  as  money,  an  act,  a  right, 
or  a  privilege,  or  it  may  be  simply  a  promise  or  an  undertaking  for  a  con- 
sideration of  value.  There  must  be  some  undertaking  or  obligation  as- 
sumed or  there  is  no  contract;  a  mere  exchange  of  two  articles  of  value  is 
not  a  contract. 

61.  As  Regards  Consideration. — The  act  undertaken  or  the   promise 
given  may  be  in  consideration  of  something  given,  or  of  a  promise  to  give, 
to  pay,  or  to  do  something,  or  to  refrain  from  doing  something.     The  con- 
sideration may  be  a  benefit  to  the  one  to  whom  it  moves  or  is  promised,  or 
a  detriment  to  the  one  who  furnishes  it.     Detriment  may  be  simply  the 
doing  of  a  thing  which  the  party  is  not  bound  to  do,  and  does  not  necessarily 

1  Langdell's  Summary  of  Contracts  1017. 

54 


§  62.]  LAW  OF  CONTRACTS.  55 

mean  injury.  There  may  be  a  clear  benefit  to  a  promisor,  and  yet  no  con- 
sideration— for  example  where  the  benefit  does  not  come  from  the  promisee. 
Detriment  to  the  promisee  is  a  universal  test  of  the  sufficiency  of  considera- 
tion, and  every  consideration  must  possess  this  quality.  If  there  is  detri- 
ment to  the  promisee  it  does  not  matter  whether  there  is  benefit  to  the 
promisor  or  not.  The  consideration  may  inure  to  the  benefit  of  the 
promisor  or  of  some  third  person,  or  to  the  benefit  of  nobody.  Considera- 
tion therefore  means  rather  that  the  promisee  suffers  detriment  more  than 
that  the  promisor  is  benefited.1  The  detriment  must  be  a  detriment  from 
entering  into  the  contract,  nufc  from  the  breach  of  it.a  In  legal  contem 
plation  the  promise  is  always  given  and  received  in  exchange  for  the  consid- 
eration, and  for  no  other  purpose.  A  promise  can  never  constitute  a  gift 
from  the  promisor  to  the  promisee. 

62.  Consideration  in  Case  of  Subscriptions.— From  what  has  been  said  a 
natural  conclusion  would  be  that  gratuitous  subscriptions  to  promote  a 
oommon  object  were  not  binding.  Many  engineering  and  architectural 
schemes  are  promoted  by  the  concerted  action  of  public-spirited  citizens, 
whose  ardor  is  less  warm  when  it  comes  to  paying  their  subscriptions  than 
when  they  made  them.  To  the  contractors  and  engineers  who  have  under- 
taken to  carry  out  their  plans  it  is  a  matter  of  much  moment  whether  thei 
can  collect  anything  for  their  time,  labor,  and  materials.* 

Where  several  persons  sign  a  subscription  paper,  each  agreeing  to  pay  a 
certain  amount  towards  an  enterprise  in  which  all  are  interested,  the 
promise  of  each  may  be  held  a  good  consideration  for  the  promise  of  the 
others.  This  may  be  a  consideration  for  a  binding  contract  between  the 
subscribers,  but  it  is  not  a  consideration  as  between  the  subscribers  and  one 
who  is  not  a  subscriber,  but  who  has  furnished  the  means  to  carry  out  the 
enterprise  for  which  the  subscriptions  were  made. 

If  the  subscription  is  for  a  designated  purpose,  and  a  contractor  is 
invited  to  carry  out  the  conditions  stipulated  in  the  subscription  paper, 
which  he  has  done,  or  if  on  the  faith  of  the  subscriptions  he  has  expended 
money  or  assumed  liability,  an  acceptance  of  the  offer  of  the  subscribers  will 
be  implied,  and  the  contractor  may  collect  from  the  subscribers.  In  the 
absence  of  the  above  circumstances  the  subscription  is  a  mere  offer  and 
cannot  be  enforced.  If  an  offer  merely  it  may  be  revoked  at  any  time 
before  the  consideration  and  conditions  have  been  performed.  A  gratuitous 
subscription  with  only  one  signature  is  but  an  offer  which,  until  accepted  by 
the  promisee  in  express  terms  or  by  a  performance  of  the  conditions 
stipulated  therein,  is  without  a  consideration,  and  cannot  be  enforced  against 
the  will  of  the  subscriber.  Doubtless,  however,  the  law  would  imply  a  con- 
tract to  reimburse  the  contractor  for  the  amount  he  had  expended,  Cer- 

1  Currie  v.  Misa,  L.  R.  10  Ex.  162;  Lang-          2  Ridgway  *.  Grace  (Com.  PL),  21  N.  Y. 
dell's  Summary  of  Contracts  1022.  Snpp.  934. 

*  See  Parties,  Sees.  48,  49,  supra. 


56          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  63, 

taiuly  it  is  well  settled  that  when  a  contractor  to  whom  the  subscriptions 
run  has  performed  his  part  or  has  incurred  obligations  on  the  faith  of  such 
subscriptions,  and  has  complied  with  the  conditions  on  which  they  were 
made,  the  contract  of  each  and  all  can  be  enforced.1 

63.  Adequacy  of  Consideration. — The  consideration   must   have  some 
value,  and  the  considerations  moving  from  either  party  to  the  other  party 
must  be  legally  equivalent.     In  the  absence  of  fraud  the  parties  themselves 
are  left  to  judge  of  the  relative  value  of   the  considerations  which  they 
furnish  or  pledge,  but  if  the  agreement  be  such  that  the  consideration  can- 
not  possibly  be  equivalent -to  the  promise  the  contract  will  not  hold. 

The  value  of  most  considerations,  as  well  as  of  most  promises,  is  some- 
thing which  the  law  cannot  measure;  it  is  not  merely  a  matter  of  fact,  but 
a  matter  of  opinion.  If  the  parties  think  that  the  consideration  is  equal  to 
the  promise,  or  vice  versa,  and  if  they  are  willing  to  exchange  one  for  the 
other,  the  consideration  will  be  equal  to  the  promise  if  the  law  can  see  that 
it  has  any  value  at  all.  Fifty  cents  cannot  be  a  consideration  to  pay  $1 
unconditionally  and  on  request,  i.  e.,  immediately.  But  $1  is  a  sufficient 
consideration  for  a  promise  to  pay  $1000  at  some  future  day  or  upon  the 
happening  of  some  uncertain  event,  though  the  $1  is  only  a  sufficient  con- 
sideration for  a  general  or  unqualified  promise  to  pay  $1.2  The  smallest  sum 
of  money  may  be  a  sufficient  consideration  for  a  promise  to  acknowledge 
satisfaction  of  a  judgment  for  the  largest  sum.2  So  $1  may  be  a  considera- 
tion for  a  farm  whose  market  value  is  $5000,  or  $1000  may  be  a  considera- 
tion for  so  trivial  a  thing  as  a  canary-bird. 

The  reasons  for  these  discriminations  are  that  the  law  has  never  aban- 
doned the  principle  that  the  consideration  must  be  commensurate  with  the 
obligation  which  is  given  in  exchange  for  it,  that  though  the  smallest  con- 
sideration will  in  most  cases  support  the  largest  promise,  this  is  only  because 
the  law  shuts  its  eyes  to  the  inequality.  Any  inequality  to  which  the  law 
cannot  shut  its  eyes  is  fatal  to  the  validity  of  the  promise.3  Yet,  though  the 
most  trivial  thing  may  answer  for  a  consideration,  there  must  be  something, 
for  the  court  cannot  disregard  the  fact  that  something  and  nothing  are  not 
equivalent.  The  inadequacy  of  the  consideration  must  not  be  so  gross  as  of 
Uself  to  prove  fraud  or  imposition.4  A  promise  to  acoept  a  part  of  a  debt 
ilready  due  in  payment  of  the  whole  if  paid  by  a  certain  day  is  without 
Consideration  and  void,  for  surely  "a  part  cannot  be  equal  to  the  whole."5 

64.  The  Consideration  of  a  Contract  Must  be  Something  More  Than  a 
Moral  Obligation. — A  mere  moral  obligation  or  duty  is  not  regarded  in  law 

JHoman  v.  Steele,  18  Neb.  652  [1886];          9  Langdell's  Summary  of  Cont'  acts  1017. 
Orman  v.  Buel  (Neb.),  59  N.  W.  Rep   515;          3  Langdell's  Summary  1017;  Emmet  Co. 

His?ert  «.  University,  53  Ind.  326  [1876];  v.  Allen  (la.),  41  N.  W.  Rep   201  [1889]. 
Brownlee  v.  Lowe  (lud.),  20  N.  E  Rep.          4Judya.  Louderman  (Ohio),   29  N.   E. 

301  [1889];  Stearns  v.  Corbett,  33  Mich.  Rep.  181. 

458  [1876];  but  see  24  Amer.  &  Eng.  Ency.          5  W»tts  v.  Frenche  et  al.,  19  N.  J.  Eq. 

Law  328,  et  seq.  407  [1869]. 


§  66.]  LAW  OF  CONTRACTS.  57 

of  sufficient  value  to  support  a  promise.  A  debt  owing  by  a  woman's  dead 
husband  which  is  barred  by  limitations  is  not  such  a  consideration  as  will 
support  an  agreement  by  her  to  pay  the  amount  of  the  debt.1 

There  are  what  seem  to  be  exceptions  to  the  statement  that  a  moral 
obligation  will  not  support  a  promise.  The  cases  of  obligations  which  are 
not  enforceable  because  of  the  infancy  or  bankruptcy  of  the  promisor  or 
because  the  right  to  an  action  is  barred  by  the  statute  of  limitations  are 
often  cited  as  such  exceptions.  In  these  cases  the  obligation  is  not  regarded 
as  having  ceased  to  exist,  but  the  law  has  given  the  party  a  defense  which  he 
may  exercise  or  waive,  and  a  new  promise  is  held  to  operate  as  such  a  waiver. 
The  action  in  such  a  case  is  not  brought  upon  the  new  promise,  but  either 
upon  the  original  obligation  or  upon  one  implied  by  law.a  A  promise  to 
pay  a  debt  which  the  creditor  has  by  his  own  act  effectually  released  is 
without  consideration.  A  promise  by  a  widow  to  perform  a  promise  made 
by  her  while  married  is  not  binding  without  a  new  consideration  in  states 
where  married  women  are  under  coverture.3  An  obligation  enforceable  in 
equity  will  support  an  express  promise  to  pay  and  make  it  suable  at  law.4 
The  moral  duty  of  a  father  to  provide  for  his  child  has  been  held  a  sufficient 
consideration  for  a  promise  to  pay  money.5 

65.  The  Consideration  Must  Not  be  Wanting.6 — If  the  thing  to  which  the 
consideration  relates  has,  contrary  to  the  belief  of  the  parties,  no  existence, 
the  contract  obligation  will  not  hold.     Thus  materials  sold  that  turn  out  to 
have  been  destroyed  before  the  bargain  was  made  is  in  fact  no  contract  of 
sale.7     So  if  parties  contract  for  a  thing  which  they  suppose  to  exist,  but 
which  in  point  of  fact  does  not  exist,  the  contract  is  void.8 

66.  The  Doing  of  a  Thing  by  One  Party  Which  He  is  Already  Bound  to  the 
Other  Party  to  Do  is  Not  a  Consideration  for  a  New  Promise  or  a  Contract. — 
A  promise  to  pay  a  public  officer  an  extra  fee  or  a  sum  beyond  that  fixed  by 
law  is  not  binding,  even  though  he  renders  services  and  exercises  a  degree  of 
diligence  greater  than  could  have  been  required  of  him; 9  but  a  contract  by 
persons  whose  property  was  threatened  by  a  mob  to  reimburse  the  sheriff 
for  money  expended  by  him  for  the  wages  and  subsistence  of  special  depu- 
ties is  not  void  as  against  public  policy  so  long  as  he  exacts  nothing  for  his 
own  services  or  the  services  of  his  regular  deputies.10 

Sullivan  «.    Sullivan   (Cal.),    33    Pac.  Hopkins  v  Hinkley,  61  Md.  584;  Price®. 

Rep.  862.  Peper,  13  Bush  42,  horse  dead.     And  the 

2  LuMgdcll's  S'unmaryof  Contracts  1026.  same   is  true  of  a  house  that  has  been 

3  3  Amer.'  &  Eng.  Ency.  Law  841.  burned      Taylor  v.    Caldwell,  3  B    &  S. 

4  Condon®.  Barr  (N.  J.),    6  Atl.   Rep.  826  Walker;  «.  Tacker,  70111.  527. 

614  [1886];  Cameron  v.  Fowler,  5  Hill  (N.  8  Marion  v.  Bennett,  8  Paige  312;  Mays 

Y.)  306.  fl.   Dwight,  1  Norris  (Pa.)  462;  Indianapo- 

6  3  Amer.  &  Eng.  Ency.  Law  840.  lis  v.  McAvoy,  86  Ind.  587. 

•Tife  v.  Blake  (Minn.),  38  N.  W.  Rep.  •  Decatur   v.    Virmillion,    77     111.    315 

202.  [1875]. 

1  Pollock  on  Contracts  441 ;  Bishop  on  m  McCandless    v.   Alleghany    Bessemer 

Contracts,   S  70  ;    Rogers    «.   Walsh,    12  Steel  Co.  (Pa.  Sup.),  25  Atl.  Rep.  579. 
Neb.  28;  Gibson  9.  Pelkie,  37  Mich.  380; 


58          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  66. 

A  promise  by  the  owner  to  pay  additional  compensation  for  the  perform- 
ance of  a  contract  which  the  contractor  is  already  under  obligation  to  the 
promisor  to  perform  is  without  consideration.1  A  promise  by  the  contract- 
or's surety,  to  whom  the  money  to  become  due  under  the  contract  had  been 
assigned,  to  pay  the  claim  of  a  subcontractor  if  he  would  do  certain  work 
which  he  was  required  to  do  by  his  contract  was  held  without  considera- 
tion.2 A  promise  by  a  building-contractor  to  put  another  coat  of  oil  on  the 
inside  of  a  house,  made  after  he  had  fully  complied  with  his  contract  and 
without  any  additional  consideration,  is  a  mere  gratuity,  and  his  failure  to 
put  on  the  additional  coat  will  not  prevent  him  from  recovering  the  full 
amount  due  under  his  contract.3  If  the  promise  had  been  made  before  he 
had  performed  his  contract  it  might  have  been  different.  When  a  construc- 
tion company  had  completed  work  according  to  contract  an  agreement  to 
accept  less  than  the  contract  price  was  held  without  consideration  and  not 
to  release  the  owner  from  liability  for  payment  at  the  original  contract  rate.4 
"The  same  was  held  of  an  agreement  of  a  subcontractor  to  sign  a  release  of 
the  contractor  from  personal  liability  in  consideration  that  the  owner  would 
pay  the  former  a  past-due  note.5  A  promise  to  pay  at  a  future  time  a  debt 
already  due,  and  which  draws  interest,  is  not  a  consideration  for  the  exten- 
sion of  the  time  of  payment  when  the  rate  of  interest  thereon  is  not 
-changed  .* 

A  promise  by  an  owner  to  an  architect  to  pay  him  a  commission  of  5 
per  cent,  additional  as  an  inducement  to  resume  work  upon  a  job  for  which 
lie  had  agreed  to  furnish  plans  and  to  superintend  is  void,  there  being  no 
consideration  for  the  promise.  The  architect  in  this  case  had  contracted  to 
prepare  the  plans  and  to  superintend  the  erection  of  a  large  brewery,  but 
upon  learning  that  a  certain  contract,  which  he  had  hoped  himself  to  secure, 
had  been  given  to  another  he  became  angry,  took  his  plans,  called  off  his 
superintendent,  and  refused  to  have  anything  more  to  do  with  the  brewery. 
The  facts  of  the  case  were  that  the  architect  took  advantage  of  the  owner's 
necessities  and  extorted  a  promise  to  pay  him  5  per  cent,  as  a  balm  for 
his  feelings  and  as  a  condition  for  his  complying  with  his  contract  already 
entered  into.  To  permit  one  to  recover  under  such  circumstances  would  be 
to  offer  a  premium  upon  bad  faith,  and  invite  men  to  violate  their  most 
sacred  contracts  that  they  might  profit  by  their  own  wrongs.7 

The  principle  seems  to  apply  even  when  the  promisee  is  under  obligation 
to  a  third  person  to  do  the  thing  in  question,  for  there  is  a  conclusive  pre- 
sumption of  law  that  the  act  is  done  in  discharge  of  the  previous  obligation, 

1  Jones  0.  Risley  (Tex.   Sup.),  32  S.   W.  'McNutta.  Loney  (Pa.   Sup.),  25  Atl. 
Rep,  1027.  Rep.  1088;  and  see  McCarly  «.  Hampton 

2  Alley  v.  Turck  (Sup.),  40  N.  Y.  Supp.  Bldg.  Assn.,  61  Iowa  287,  where   an  addi- 
433.  tional  guaranty  w  '8  exacted. 

3  Widiman  v.  Brown  (Mich.),  47  N.  W.  •  Stickler  v.  Giles  (Wash.),  37  Pac.  Rep. 
Rep.  231  [1890].                                         -  298. 

4  Fitzgerald    v.    Fitzgerald    &    Mallory  7  Lingenfelder  «.  W.  Brewery  Co.  (Mo.), 
Const.  Co.  (Neb.),  59  N.  W.  Rep.  838.  15  S.  W.  Rep.  844  [1891]. 


§  67.]  LAW  OF  CONTRACTS.  59 

and  not  as  a  consideration  .of  a  new  and  later  promise.1  So  if  a  builder 
is.  under  a  contract  to  complete  a  house  by  a  certain  day  and  an  out- 
sider promises  him  a  bonus  if  he  will  fulfill  his  contract  the  promise  would 
be  without  a  consideration.  It  would  be  otherwise,  however,  if  the  contract 
had  been  mutually  rescinded  or  the  contractor  had  good  and  sufficient  reason 
for  abandoning  the  work.  A  promise  in  consideration  that  he  should  complete 
it  a  day  earlier  than  that  required  by  his  contract  would  be  binding,  and  an 
extension  of  time  by  one  party  is  a  good  consideration  for  the  promise  of 
another.2 

A  request  by  the  owner  of  a  building,  that  subcontractors  stop  work  for 
the  reason  that  the  contractor  had  overdrawn  his  account  and  that  he  could 
get  it  done  more  cheaply,  and  a  refusal  on^the  part  of  the  subcontractors, 
whereupon  the  owner  told  them  to  go  ahead  and  to  send  the  bill  to  him,  but 
to  make  a  reduction  in  the  price  if  possible,  was  held  to  create  a  contract 
between  the  owner  and  subcontractors  on  sufficient  consideration.3  An 
agreement  of  a  construction  company  to  commute  its  contract  rate  of  com- 
pensation for  finished  work  to  a  lower  rate,  because  the  work  had  not  been 
completed  as  agreed,  in  consideration  of  which  the  other  party  consented  to 
accept  the  work  in  its  unfinished  condition,  affords  a  sufficient  consideration 
to  sustain  the  stipulated  reduction.4 

A  contract  to  make  an  excavation  at  an  agreed  price,  the  contractor 
having  examined  the  work  before  taking  the  contract,  and  having  furnished 
proof  that  it  was  found  more  difficult  than  was  supposed,  which  was  dis- 
puted by  disinterested  witnesses,  is  insufficient  to  show  consideration  to 
uphold  a  promise  to  pay  an  additional  price.5  An  agreement  to  permit 
the  contractor  to  retain  twenty-five  dollars  already  paid  him  above  his 
expenses  and  to  pay  for  the  material  furnished  in  consideration  of  the 
cancellation  of  the  contract  is  not  void  for  want  of  a  consideration.6  A 
promise  to  pay  for  extra  materials  ordered  by  the  architect,  made  before  the 
work  is  completed,  is  founded  on  sufficient  consideration  as  to  materials 
already  used,  as  well  as  those  not  used.7 

67.  The  Consideration  Must  be  Present. — The  consideration  must  be 
present,  i.  e.,  in  legal  contemplation  the  promise  or  undertaking  must  be 
assumed  the  moment  the  consideration  is  completely  performed.  This  would 
seem  to  be  necessary  if  the  consideration  is  given  in  exchange  for  the  prom- 
ise. A  past  act  performed  without  regard  to  any  promise  cannot  be  said 
to  have  been  given  in  exchange  for  the  promise,  and  a  promise  made  for  a 

1  Langdell's  Summary  of  Contracts  1018.  5  Casterton  u.  Mclntire,   23  N.  Y.  Supp. 

2Risleya.  Smith,  64  N.  Y.  576  [1876],  301. 

and  cases  cited.  6  Blagborne  «.  Hunger  (Mich.),  59  N.  W. 

"Yoeman  v.  Mueller,  33  Mo.  App.  343  Rep.  657. 

[1889].  '  Irwin  v.  Locke  (Colo.),  86  Pac.   Rep. 

4  Fitzgerald    «.   Fitzgerald   &     Mallory  898. 
Coast.  Co.  (Neb.),  59  N.  W.  Rep.  838. 


60          ENGINEERING   AND  ARCHITECTURAL  JURISPRUDENCE.     [§  67, 

consideration  already  performed  is  simply  a  promise,  without  a  consideration, 
and  therefore  cannot  form  an  element  of  a  binding  contract.  A  promise 
made  for  a  consideration  to  be  thereafter  performed,  though  invalid  as  a 
promise,  may  take  effect  as  an  offer  and  become  binding  if  the  considera- 
tion is  performed  before  it  is  revoked  or  has  ceased  to  exist. 

A  promise  made  in  consideration  of  some  future  act  must  be  distin- 
guished from  a  promise  given  in  exchange  for  a  promise  to  do  some  future 
act.1  In  the  former  case  the  promise  is  in  exchange  for  a  future  act,  which 
is  only  an  offer,  while  in  the  latter  case  the  promise  is  in  exchange  for  a 
present  promise,  and  the  promises  themselves  are  the  consideration,  one  for 
the  other.  When  the  consideration  consists  of  performance  the  promise 
becomes  binding  when  the  act  is  performed.  If  an  owner  promise  to  pay  a 
contractor  a  sum  of  money  if  he  will  do  a  particular  act,  and  the  contractor 
does  the  act,  the  promise  thereupon  becomes  binding,  though  the  contractor 
at  the  time  did  not  engage  to  do  the  act.3  A  promise  in  consideration  of 
some  past  or  future  act  must  be  distinguished  from  a  promise  for  or  in  con- 
sideration of  a  promise  to  perform  some  deed  or  work  some  time  in  the 
future,  or  of  a  promise  made  on  account  of  some  past  act  by  which  the  party 
derived  some  benefit  or  the  other  party  suffered  detriment.  In  the  former 
case  the  past  or  future  act  itself  would  not  be  a  sufficient  consideration,  but 
in  the  latter  case  the  present  promise  is  a  good  consideration.  Thus  if  an 
owner  says  to  a  builder:  "I  will  pay  you  ten  thousand  dollars  to  build 
me  a  house,"  and  the  builder  says:  "All  right,"  and  the  builder  thereupon 
makes  arrangements  to  build,  it  is  not  strictly  an  enforceable  contract  until 
the  builder  has  built  the  house.  The  owner  may  revoke  the  offer  any  time 
before  the  builder  has  completed  the  house,  i.  e.,  furnished  the  stipulated 
consideration;  and  the  builder  can  have  no  action  for  the  revocation,  there 
being  no  express  contract,  though  the  law  will  imply  a  contract  by  the 
owner  to  pay  the  builder  the  reasonable  value  of  what  he  has  received  or 
been  benefited.  But  if  the  owner  says:  "I  promise  to  pay  you  ten  thousand 
dollars  if  you  ^promise  [agree]  to  build  me  a  house,  payment  when  house  is 
completed,"  to  which  the  builder  agrees,  then  the  contract  is  supported  by 
a  present  consideration,  viz.,  the  promise  to  build.  So  a  promise  to  pay  in 
consideration  of  some  service  rendered  in  the  past,  and  not  at  the  express  or 
implied  request  of  the  promisor,  is  not  binding.3 

In  all  these  cases  if  the  owner  is  free  to  refuse  or  caif  return  what  he  has 
benefited  or  been  enriched  by  the  labors  of  the  contractor,  and  he  does 
not  return  it,  the  law  will  imply  a  contract  to  pay  for  it  what  it  is  rea- 
sonably worth  to  him;  but  the  contractor  does  not  recover  upon  an  express 
contract  made  by  him  with  the  owner,  but  upon  the  contract  imposed  by 
the  law  to  promote  justice  and  to  prevent  unjust  enrichment.  If  the 

1  Langtlell's  Summary  of  Contracts.  1024  v.  Sweesy  (Neb.),  67  N.  W.  Rep.  748; 
8  Train  «.  Gold,  5  Pick  (Mass.)  380-285.  Myers®  Dean  (Com.  PI.),  32  N.  Y. 
3  3  Arner.  &  Eng.  Ency.  Law  838;  Stuht  Supp.  237. 


§  68.]  LAW  OF  CONTRACTS.  61 

owner  cannot  restore  what  he  has  received  he  need  not  pay  for  it,  as  when 
a  contractor  has  built  a  house  upon  the  land  of  another  without  his  knowl- 
edge or  consent,  or  has  built  the  house  materially  different  from  the  one  he 
contracted  to  build;  there  is  no  contract  implied  by  law  to  pay  for  it,  and 
the  fact  that  the  owner  uses  it  and  enjoys  it  does  not  add  to  his  liability  to 
pay  for  it.1 

If  a  part  of  the  consideration  is  present  and  a  part'past  it  will  support 
the  promise  or  agreement.2  Therefore  when  certain  sums  were  subscribed 
to  induce  a  contractor  to  complete  the  grading  of  a  street  begun  under  a 
contract  with  the  city  and  in  consideration  of  that  agreement  the  contractor 
made  a  settlement  with  the  city  for  the  work  then  done  and  entered  in.to 
engagements  for  its  completion,  which  arrangements  and  expenditures  he 
was  not  obliged  to  perform  under  his  contract  with  the  city,  and  which 
were  necessarily  productive  of  loss  and  injury  in  case  of  nonpayment,  it  was 
held  that  the  consideration  was  amply  sufficient  to  support  an  action  for  the 
amount  pledged.3  A  receipt  in  full  by  a  subcontractor  who  claimed  extra 
remuneration  for  extra  work  has  been  held  a  good  consideration  for  a 
promise  to  pay  for  the  same  extra  work  if  the  promisor  succeeded  in  getting 
an  allowance  for  the  same.4 

68.  From  Whom  Consideration  Must  Come. — The  consideration  of  a  con- 
tract must  move  from  the  person  who  receives  the  promise,  i.  e.,  the  prom- 
isee. If  it  does  not,  then  the  promise  cannot  be  said  to  ]  ive  been  given  in 
exchange  for  it,  but  as  a  gift,  which  is  not  binding  on  the  promisor.  Cer- 
tain courts  may  and  do  allow  persons  for  whose  benefit  thp  promise  is  made, 
i.  e.,  the  beneficiaries,  to  sue  on  a  contract;  but,  as  Professor  Langdell  has 
said  in  his  Summary,  the  consequence  is  that  the  promisor  is  then  liable  to 
two  actions — one  by  the  promisee  and  one  by  the  beneficiary.  In  truth  a 
promise  to  A  to  pay  one  hundred  dollars  to  B  confers  no  right  upon  B  in 
law  or  equity,  but  there  are  similar  caser  in  which  B  has  been  allowed  to 
recover  against  the  promisor.5 

Therefore  a  third  party  was  held  not  liable  for  the  work  of  a  contractor, 
because  he  told  him,  while  the  work  was  in  progress,  to  go  on  and  do  the  work 
ordered  by  the  owner  and  he  would  pay  for  it;  nor  for  the  reason  that  the 
owner  introduced  the  third  party  to  the  contractor  as  his  partner  and 
coadjutor  in  the  work,  and  that  he  was  shown  what  was  being  done  in  con- 
nection wit-h  the  owner,  and  that  he  expressed  great  satisfaction  and  told 
the  contractor  to  go  on  and  do  all  that  the  owner  ordered  and  he  would  pay 
for  it.  Ttu  promise  was  held  voluntary  and  without  consideration.6 

1 3  Amer.  &  Eng.  Ency.  Law  839.  on  the  part  of  the  subcontractor  to  do  un- 

2  Cases  in  o  Amer.  &  Eng.  Ency.  Law  less  required  to  do  so  to  obtain  the  con- 
838.  tract  price.— ED.] 

3  Corrigan  v.  Detsch,  61  Mo.  290  [18751.  5  3  Amer.  &  Eng.  Ency.  Law  863. 

4  Read   o.  Hitchins,  71  Me.  590  [1880].  •  Stidham  v.  Sanford,  36  N.  Y.  Sup.  Ct. 
[However,  it  was  not  a  very  brilliant  thing  341  1 1873V 


62          ENGINEERING  AND  AEG H1TECT URAL  JURISPRUDENCE.     [§  69. 

The  principle  is  well  illustrated  in  a  case  where  the  third  party  was  a 
member  of  a  committee  to  solicit  aid  towards  the  erection  of  a  foundry- 
building,  donated  as  an  inducement  for  a  foundry  business  to  remove  to 
a  village  where  the  third  party  resided.  The  third  party  had  called  upon 
an  architect  to  solicit  aid,  at  the  same  time  telling  him  the  purpose 
contemplated,  and  that  whatever  was  done  was  to  be  a  voluntary  contri- 
bution. Under  these  circumstances,  and  without  any  express  promise  by 
the  third  party  to  pay  him  therefor,  the  architect  prepared  plans  and  speci- 
fications for  the  proposed  building.  It  was  held  that  to  charge  appellant 
for  such  plans  an  express  promise  to  pay  must  be  established,  and  such 
promise  must  have  been  made  before  the  service  was  rendered ;  for  if  the 
work  was  not  done  on  the  credit  of  the  third  party,  but  for  some  other  per- 
son, any  subsequent  express  parol  promise  to  pay  for  the  same  would  be 
void  as  being  a  promise  to  pay  the  debt  of  a  third  person  and  being  without 
consideration.1 

69.  Changes  or  New  Terms  in  a  Contract.— If  a  contract  cannot  be  cre- 
ated without  a  valid  consideration  it  would  naturally  follow  that  some  con- 
sideration would  be  required  to  modify  its  terms  or  add  new  terms  to  an 
existing  contract.2  Therefore  when  certain  work  was  being  done  according  to 
the  contract  and  specifications,  and  the  employer,  under  threats  of  stopping 
the  work,  and  without  any  further  consideration,  exacted  and  secured  from 
the  contractor  a  guaranty  concerning  the  work  not  embraced  in  the  original 
contract,  it  was  held  that  such  guaranty  was  not  binding  upon  the  con- 
tractor, and  that  in  an  action  brought  by  him  for  the  contract  price  of  the 
work  a  failure  of  said  guaranty  could  not  be  set  up  as  a  defense  by  the 
owner.3 

There  is  no  doubt  that  at  any  time  after  a  writen  contract  has  been 
entered  into  the  parties  may  orally  either  vary  it  or  abrogate  it,  if  there  is  a 
new  consideration.4 

Some  tribunals  have  conceded  that  an  executory  parol  contract  may  be 
varied,  or  even  dissolved,  before  breach  by  an  agreement  to  that  effect  with- 
out any  new  consideration,  which  involves  the  idea  that  if  a  person  who 
has  entered  into  a  contract  declare  that  he  will  not  fulfill  it  as  it  stands, 
nor  unless  his  demands  are  satisfied,  and  the  other  party  assents,  the  new 
agreement  will  supersede  the  old  one.6  *  Thus  it  has  been  held  that  if  a 
contractor  threatens  to  abandon  his  contract  on  account  of  pretended  mis- 

1Dunton  v.   Chamberlain,   1    Brad  well  Flanders  v.  Fay,  40  Vt.  316;  Burkham  v. 

361  [1878].  Martin,  54  Ala.  122;  Maxfield  v.  Terry,  4 

2  Titus  v.  Cairo  &  T.  R.  Co.,  37  N.  J.  Del.    Ch.    618;   Roberts  v.  Wilkinson,   34 
Law  98.  Mich.  129. 

3  McCarty  v.  The  Hampton  Bldg.  Ass'n,  6  Holmes  v.  Doane,  9  Gush.  135;  Wilgus 
61  la.  287  [1883],  0.  Whitehead,  6  W.  N.  of  C.  537. 

4Juilliard    v.   Chaffee,   92   N.   Y.   529; 

*  There  are  numerous  decisions  to  the  contrary,  which  are  set  forth  in  Sec.    181. 


§  70.]  LAW  OF  CONTRACTS.  63 

representations  of  the  company,  or  becatise  unexpected  difficulties  have 
been  encountered,  or  because  the  work  is  too  expensive,  and  the  owner 
agrees  to  pay  an  extra  price,  the  promise  is  binding,  though  apparently 
without  consideration.1  So  it  has  been  held  that  no  new  consideration  waa 
necessary  to  sustain  an  agreement  by  the  owner  to  extend  the  time  for 
completion  of  a  building  contract.2 

An  agreement  without  a  consideration  is  repugnant  to  the  law  of  con- 
tracts, and  it  may  well  be  doubted  if  these  cases  as  stated  are  good  law.3' 
If  these  cases  were  looked  into  it  would  be  found  that  there  were  mutual 
promises  or  mutual  acts  to  be  performed,  or  that  the  question  of  considera- 
tion was  not  raised  until  the  work  was  done  and  the  contract  executed. 
There  are  many  cases  that  decide  that  a  consideration  is  required  to  sustain  a 
change  in  a  contract,  and  to  be  safe,  a  consideration  should  always  be 
insisted  upon. 

If  it  is  agreed  between  the  owner  and  the  contractor  that  the  work  shall  be- 
performed  in  a  manner  different  from  that  originally  agreed  upon  it  has  been 
argued  that  the  undertaking  of  the  contractor  to  do  something  different 
though  only  in  detail,  and  the  relinquishing  by  the  other  party  of  the  right, 
to  have  it  done  in  a  particular  manner,  furnished  consideration  enough,  and 
that  the  court  would  not  go  into  the  question  whether  it  gave  an  actual 
advantage.4  A  contract  that  has  not  been  executed  may  be  rescinded  by 
mutual  agreement,  the  parties  exchanging  promises  not  to  enforce  their 
rights; 5  but  a  contract  executed  by  the  contractor,  leaving  only  an  obligation 
to  pay  on  the  part  of  the  owner,  cannot  be  rescinded  by  mutual  consent  with- 
out other  consideration.6  * 

70.  Consideration  Good  in  Part. — When  an  offer  is  made  for  a  consider- 
ation named  no  promise  arises  until  the  consideration  is  fully  performed. 
If  the  consideration  consists  of  several  things  they  must  all  be  performed. 
If  any  part  of  the  specified  consideration  is  illegal  the  illegality  will  affect 
the  whole,  and  there  will  be  no  binding  promise.7  If,  however,  a  part 
only  is  void  or  voidable  it  is  otherwise,8  for  it  is  impossible  to  apportion  the 
weight  of  each  part  of  the  consideration  in  inducing  the  promise.  If,  among 
several  things  named  as  consideration,  a  good  and  sufficient  consideration 
can  be  found  it  is  the  same  as  if  that  alone  had  been  specified  as  a  consider- 
ation.6 Where  independent  promises  are  in  part  lawful  and  in  part  unlaw- 

1  Hart   V.   L'lunman,   29   Barb.  410;   Os-  5  Foster  v.   Daber,  6  Exch.  851;  Mora- 
borne  v.  O'Reilly,  42  K  J.  Eq.  467  [1887].  wetz  on  Corp'ns,  §371. 

2  Izard  v.  Kimmel  (Neb.),  41  N.  W.  Rep.  6  Westmoreland  v.  Porter,  75  Ala.  452- 
1068   [1889];   Hill    v.  Smith,    34  Vt.    535;  [1883]. 

Rulsre  0.  Gates  (Wis.),  38  N.  W.  Rep.  181  7  LangdelFs  Summary  of  Contracts  1030  ; 
[1888].  Pollock  on  Contracts  (4th  ed.)  321  ;  Ed- 

3Webbe  v.  Romona  O.  S.  Co.,  58  111.  wards  Co.  v.  Jennings  (Tex.),  35  8.  W. 
App.  222.  Rep.  1053. 

4  Pollock  on  Contracts  180.  8  Clements  <o.  Marston,  52  N.  H.  31  [1873]. 

9  Laugdell's  Summary  of  Contracts  1030. 

*  See  Sec.  66,  supra. 


64 


ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  70. 


ful  those  which  are  lawful  can  be  enforced,  but  if  any  part  of  an  entire 
consideration  is  unlawful  all  promises  founded  upon  it  are  void.1  If  the 
contract  is  bad  in  part  for  being  in  violation  of  law,  but  good  in  part,  and 
the  good  part  of  the  contract  can  be  separated  from  the  bad,  that  which  is 
good  can  be  enforced  in  law.a  The  possible  invalidity  of  a  provision  in 
the  contract  for  referees  in  case  of  differences  rising  was  held  not  to  invali- 
date the  contract  as  a  whole.3  When  a  contract  is  open  to  two  construc- 
tions, the  one  lawful  and  the  other  unlawful,  the  former  must  be  adopted.4 
In  all  contracts  in  writing  and  under  seal  signed  by  the  parties  bound 
thereby,  a  valid  consideration  is  implied.5  Equity  will  not  relieve  a  surety 
from  liability  on  an  instrument  under  seal  merely  for  want  of  considera- 
tion when  no  consideration  was  contemplated  by  the  parties.8 

1  Pollock  on  Contracts  (4th.  ed.)    321  ; 
Reed  v.   Brewer    (Tex.),  37  S.  W.  Kep. 
418. 

2  Jackson  v.  Shawl,  29  Cal.  267  [1865]  ; 
Erie  R.  Co.  v.  Union  Loc.  &  Express  Co., 
35  N.  J.  Law  240  [1871]. 

3  Union  Pac.  Ry.  Co.  v.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  16  Sup.  Ct.  Rep.  1173. 

4  Hobbs  «.  McLean,  117  U.  S.  567  [1886] ; 


followed  in  United  States  v.  Central  Pac.  R. 
Co.,  118  U.  S.  235  [1886]. 

6  Warren  v.  Johnson  (Kan.),  17  Pa£.  Rep. 
592  [1888];  Erickson  v.  Brandt  (Minn.),  55 
N.W.  Rep.  62  ;  Fuller  v.  Artman,  24  N.  Y. 
Sup.  13. 

6  Meek  v.  Frantz  (Pa.  Sup.),  33  All. 
Rep.  413. 


CHAPTER   III. 

LAW  OF   CONTRACTS.     ESSENTIAL  ELEMENTS  OF  A  CONTRACT. 

THE    SUBJECT-MATTER.       THE    ACT    TO    BE    PERFORMED    OR    THING    TO    BS 
ERECTED,   FURNISHED,   OR   SUPPLIED. 

71.  Relation   of  the    Subject-matter   and  the  Consideration.— The  act, 
undertaking,  or  promise  on  the*  part  of  one  party  is  the  consideration  for 
the  act,  agreement,  or  obligation  of  the  other  party.     In  fact  it  cannot  be 
said  that  the  undertaking  of  the  second  party  is  any  less  the  consideration 
of  the   contract   than   is   the   undertaking   of  the   first  party.     They   are 
considerations  one  for  the  other,  and  what  has  been  said  of  the  legality  or 
validity  of  the  consideration  will  be  quite  as  true  for  the  act  or  promise 
given  in  return — i.  e.,  the  act  or  subject-matter  must  be  a  lawful  under- 
taking and  one  not  contrary  to  the  policy  of  the  law.     Whatever  may  be 
said  of  the  acts  or  undertakings  of  one  party  will  hold  equally  true  for  the 
acts  or  undertakings  of  the  other  party.     The  consideration  on  both  sides  in 
construction  contracts  is  usually  an  act  or  a  promise  to  perform  certain  acts. 
The  consideration  on  one  side  may  be  a  material  object,  as  a  sum  of  money 
or  a  cargo  of  lumber,  or  it  may  be  a  circumstance  or  a  condition  of  detri- 
ment.    It  may  be  an  act  or  the  refraining  from  doing  some  act.     Whether 
a  material  object  or  a  condition,  the  contract  obligation  existing  between  two 
parties  is  usually,  if  indeed  not  always,  the  result  of  an  act  on  the  part  of 
one  or  both  parties.     It  is  not  the  mere  existence  of  the  money  or  the  lum- 
ber that  is  the  consideration  of  the  contract,  but  the  act  of  paying  the 
money  or  the  delivery  of  the   materials  is  the  real  consideration  of  the 
contract.     The  loss  of  the  ship,  the  burning  of  the  house,  or  the  death  of 
the  person  may  mark  the  hour  from  which  the  company  is  liable  for  the 
insurance,  but  the  right  to  demand  the  insurance  dates  from  the  proof  of 
certain  conditions  which  requires  an  act  on  the  part  of  one  of  the  parties. 
The  consideration  may  be  either  the  doing  of  an  act  or  the  giving  of  a 
promise.1 

AS    REGARDS   THE   ACT  TO   BE   DONE   OR   UNDERTAKEN   OR   THE   CONSIDERA- 
TION   FOR   WHICH    IT    IS    UNDERTAKEN. 

72.  There  Must  be  a  Lawful  Subject-matter— The  Promise  Must  be  to 
Perform  a  Lawful  Act. — A  legal  contract  requires  that  the  obligations  as* 

1  3  Amer.  &  Eng.  Ency.  Law  831. 


66          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  73. 

assumed  shall  be  lawful  acts  or  undertakings  not  only  within  the  written 
law  of  the  land,  but  that  they  shall  be  in  harmony  with  the  law  and  in 
keeping  with  the  policy  of  the  government  and  good  society,  and  that  their 
execution  shall  be  possible.  The  consideration  on  both  sides  can  be  neither 
wicked  nor  prohibited  by  law.1  It  therefore  follows  that  the  consideration, 
the  act  or  undertaking,  of  either  party  must  not  be  opposed  to  the  constitu- 
tion of  the  United  States  or  of  the  State;  it  must  not  be  contrary  to  law, 
and  the  effect  of  the  contract  must  not  be  to  defraud  or  injure  the  gov- 
ernment. 

Among  the  latter  agreements  are  those  that  promote  smuggling,  evade 
the  internal-revenue  laws,  assist  in  rebellion  or  riot,  aid  enemies  of  our 
country,  effect  fraud  in  elections,  or  interfere  with  legislation  or  the  admin- 
istration of  justice  by  our  courts.  Contracts  to  build  ships  of  war  or  to- 
manufacture  arms  or  to  furnish  supplies  in  violation  of  the  laws  and 
treaties  of  our  country  will  not  be  recognized  by  our  courts. 

73.  Contracts  the  Effect  of  Which  is  to  Influence  Public  Officers.— A 
contract  must  not  tend  to  influence  legislative  bodies  or  public  officers  in  the 
discharge  of  their  duties.  A  contract  to  pay  a  certain  sum  of  money 
annually  for  ten  years  in  consideration  of  the  owners  offering  their  building 
to  the  government  for  a  post-office  at  a  nominal  rent  and  using  their  per- 
sonal influence  and  proper  persuasion  to  have  the  post-office  located  in  that 
building  was  held  illegal  and  against  public  policy,  and,  the  consideration 
being  indivisible  and  partly  illegal,  the  whole  contract  was  declared  void.* 
If  the  owners  were  not  to  have  used  their  influence  and  persuasion  with  the 
public  officers  it  seems  the  contract  would  have  been  legal.3 

If  there  be  no  evidence  that  a  politician  had  influenced  any  legislators 
or  public  officers  in  his  behalf,  then  the  contract  might  be  held  valid  and  not 
necessarily' against  public  policy.4  The  government  may  enter  into  a  lease  of 
a  building  for  a  nominal  sum,  the  rent  being  made  small  to  induce  it  to- 
locate  the  office  in  such  building.  Such  a  lease  is  not  contrary  to  public 
policy  in  the  absence  of  anything  to  show  that  the  building  is  not  a  con- 
venient and  desirable  one  for  the  purpose.8 

An  agreement  by  a  public  officer  to  accept  a  greater  or  less  fee  than  is 
prescribed  by  statute,  or  not  to  avail  himself  of  a  statutory  mode  of  enforcing 
the  collection  of  his  fees,  is  against  public  policy,  as  is  also  a  contract  to- 
delegate  his  official  duty,  or  to  pay  a  rival  candidate  half  of  the  profits  of  an 
office,  or  for  a  deputy  to  divide  all  his  fees  with  his  principal,  such  fees  being 
payable  directly  to  such  deputy,6  or  for  the  principal  to  appoint  a  certain 
person  as  deputy  in  case  he  is  elected.6 

1  Pollock  on  Contracts  322.  many  cases  cited. 

2  9  Amer.  &  Eng.  Ency.  Law  916  ,  Elk-  5  Deyoe  v.  Woodworth  (N.  Y.  App.),  39 
art  Co.  Lodge  v.  Crary,  98  Ind.  238  [1884].  N.  E.  Rep.  375;  24  N.  Y.  S.  373  affirmed; 

3  Fearnley  v.  De  Manville  (Colo.  App.),  9  Amer.  &  Eng.  Ency.  Law  915. 

89  Pac.  Rep.  73.  6  Conner  v.  Canter  (Ind.  App.),  44  N.  E. 

4  Beal  v.  Polhemus,  34  N.  W.  Rep.  532,      Rep.  656. 


§  74.]  LAW  OF  CONTRACTS.  67 

Contracts  for  public  favor  cr  personal  influence  with  the  government  or 
with  public  officials  are  against  public  policy.  Such  are  contracts  to  pay 
officers  for  their  influence  in  procuring  contracts  for  work,  as  to  have  a  cer- 
tain person's  bid  accepted ; l  or  to  procure  sales,  or  to  induce  any  one  to  do- 
acts  inconsistent  with  his  duty. 

Any  agreement  which  contemplates  the  use  of  private  influence  to  secure 
legislation  is  void,2  but  a  contract  to  draft  bills,  explain  them  to  members- 
of  the  legislature,  and  request  their  introduction  is  not.3  An  agreement  to- 
procure  the  passage  of  a  bill  declaring  certain  railroad  lands  forfeited  to  the 
government,  so  that  one  party  to  the  contract  might  be  benefited  as  a  lona 
fide  settler  under  the  homestead  laws,  is  void  as  against  public  policy.4  Con- 
tracts with  legislators  to  secure  franchises,  enactments,  and  licenses  for 
public  works,  by  would-be  contractors  or  companies  that  want  charters  for 
special  works,  are  within  the  same  class. 

A  mortgage  given  to  secure  the  payment  of  compensation  for  procuring 
the  appointment  or  resignation  of  a  public  officer  is  void  as  against  public 
policy.5  Money  paid  under  a  contract  for  the  sale  of  property  which  is 
contrary  to  public  policy,  because  of  a  promise  by  one  of  the  parties  to 
resign  a  public  office  and  use  his  influence  to  securce  the  other's  appoint- 
ment, cannot  be  recovered  on  refusal  of  the  seller  to  perform.6  An  assign^ 
ment  of,  or  a  lien  on,  the  unearned  salary  or  fees  of  a  public  officer,  given  by 
him,  is  void  as  against  public  policy.7 

74.  Contracts  for  the  Perversion  of  the  Courts. — A  legal  contract  can- 
not have  for  its  object  the  perversion  of  our  courts  or  the  obstruction  of 
justice.8  An  agreement  to  procure  evidence  in  consideration  of  a  part> 
of  the  sum  recovered  is  against  public  policy;9  and  one  to  stifle  a  prose- 
cution or  to  withhold  testimony  therein  is  absolutely  void,  and  no  re- 
covery can  be  had  on  a  promissory  note  given  in  consideration  of  such  an- 
agreement.10 

Agreements  to  pay  money  to  a  witness  to  keep  out  of  court,11  or  to 
induce  a  public  officer  to  violate  his  trust  or  neglect  his  duty,  or  to 
do  things  inconsistent  with  his  official  duties,12  to  gain  particular  official 

1  Davidson  v.  Seymour,  1  Bosw.  (N.  Y. )  Rep.  343. 

88;   Halcomb  v.  Weaver,  136  Mass.  265;  '  State  Nat.  Bank  v.  Fink  (Tex.  Sup.),  24 

and  seeder mudez  Asph.  Pav.  Co.  v.  Critch-  S.  W.   Rep.   256;  Williams  v.  Ford  (Tex. 

field,  62  111.  App.  221.  Civ  App.),  27  S.  W.  Rep.  723 

2Burney's  Heirs?).  Ludeling(La.),  16  So.  8  Bierbauer  v.  Wirth,  5  Fed.  Rep.  336 

Rep.  507.  [1880]. 

3  Chesebrougk  «.  Conover  (N.  Y.  App.),  9Lyon  v  Hussey  (Sup.),  31  N.  Y.  Supp. 

35  N.   E.   Rep.    633;    21   K   Y.    S.    566  281;  Kennedy  «.    Hodges  (Ga.),  25  S.  E. 

affirmed.  Rep.  493. 

4Houlton   0.  Dunn   (Minu.),  61  N.  W.  10  Friend  0.  Miller  (Kan.),  34  Pac.  Rep. 

Rep.  898;  but  see  contra  Houlton  v.  Nichol  397. 

(Wis  ),  67  N  W.  Rep.  715.  "  In  re  Brule  (D.  C.),  71  Fed.  Rep.  943. 

5 Basket  v.  Moss  (N.  C.),  20  S.  E.  Rep.  12  Robinson  v.  Patterson  (Sup.  Ot.  Mich.), 

733.  July.  1888;  Schlass  v.  Hewlett  (Ala.).  1 

•Edwards  v.  Randle  (Ark.),  38  S.  W.  So.  Rep.  263. 


68          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  75. 

favor,1  or  to  influence  legislators,'  and  similar  undertakings,  are  illegal  con- 
tracts, and  will  not  be  enforced  by  our  courts.3 

75.  The  Undertaking  Must  Not  be  Contrary  to  Federal  or  State  Laws,  or 
in  Disregard  of  Police  Regulations  or  City  Ordinances. — It  is  not  necessary 
that  the  parties  should  actually  contract  to  do  the  acts  specially  prohibited, 
but  it  is  sufficient  if  the  tendency  is  to  subvert  the  laws,  or  overthrow, 
defraud,  or  injure  the  government  or  its  institutions.     If  the  contract  is 
made  for  the  purpose  of  using  the  subject-matter  in  a  manner  prohibited  by 
law  there  can  be  no  recovery  on  the  contract.4     Mere  knowledge  of  the  use 
to  which  the  things  are  to  be  put  will  prevent  recovery  for  them  if  the  act 
prohibited  amounts  to 'a  felony.5     Knowledge  alone,  even  if  the  act  does  not 
amount  to  a  felony,  will  preclude  recovery  in  England.6     In  short  if  the 
agreement  is  to  do  anything  to  facilitate  the  doing  of  an  unlawful  act  it  is 
invalid,  and  there  can  be  no  recovery.     A  case  in  trade  is  reported  where  a 
quantity  of  candy  and  silverware  was  sold,  to  be  put  up  in  "  prize  candy 
packages";  it  was  held  that  the  transaction,  having  been  for  the  purpose  of 
aiding  in  a  lottery,  which  was  prohibited  by  the  New  York  statutes,  it 
was  void  and  that  no  recovery  could  be  had  upon  the  contract.7 

76.  The  Contract  Must  Not  be  to  Invade  Property  Rights,  to  Commit  or 
to  Maintain  a  Nuisance,  to  Obstruct  a  Public  Way  or  Stream,  or  to  Commit  a 
Trespass. — Some  cases  of  interest  to  engineers  and  contractors  will  best 
demonstrate  these  points  of  contract  law.     Thus  it  is  submitted  that  a 
contract  to  erect  a  bridge  over,  or  a  tunnel  under,  the  Hudson  Eiver  at  New 
York,  entered  into  before  the  necessary  franchise  had  been  obtained  from  the 
state  and  Federal  governments  would  not  be  a  binding  obligation ;  or  a  con- 
tract to  drive  piles  or  build  a  pier  out  into  the  bay  beyond  the  harbor-line;  or 
to  do  work  that  would  necessarily  obstruct  a  public  street  or  waterway.8     A 
contract  to  build  a  railroad  or  canal  through  a  state,  territory,  or  reservation, 
entered  into  before  the  corporation  had  obtained  its  franchise  or  authority 
from  the  state  to  build,  would  not  be  a  valid  contract;  certainly  the  con- 
tractor could  not  be  required   to  fulfill  his  contract  until  the  necessary 
license  and  permission  had  been  obtained.     Such  cases  come  up  not  infre- 
quently; such  are  contracts  to  construct  waterworks  or  irrigation  ditches, 
canals  or  sewers  when  the  appropriation  or  pollution  of  the  water  would  be  un 
unlawful  act,  or  to  drive  a  tunnel  under  a  government  fortress,  as  occurred 
on  the  West  Shore  Railroad  at  West  Point.     The  question  has  been  asked 

*3  Fed.  Rep.  1;  Hager  tf.  Callin,  18  Him  82  Keener's  Cases  on  Quasi- Con  tracts 

448  [1879];  Slaunton  <o.  Parker,  19  Hun  55  35,  note. 

[1879].  7  Hull  0.  Ruggles,  56  N.  Y.  424;  see  also 

2  2  Amer.  &  Eng  Ency   Law  366.  Arnot  fc.  Coal  Co..  68 N  Y.  558;  and  Lynch 

3  See  a  good  collection  of  cases  in  9  Amer.  v.  Resenthal  (Ind.),  42  N.  E.    Rep.   1103, 
&  Eng.  Euc}r.  Law  879-930.  a  contract  for  sale  of  lots  to  subscribers  to 

4Caanan  v.  Bryce,  3  B.  &  Aid.  179;  Me-  be  determined  by  lot,  held  void. 

Kimmel  v.  Robinson,  3  M.  &  W.  434.  8  Whitfleld  v.  Zellnor,  2  Cushman  (Miss.) 

5Hanauer  0.  Doane,  12  Wall.  342;  but  663,  work  enjoined  as  a  nuisance. 
see  Fedder  «.  Odorn,  2  Heisk.  68. 


§  76.]  LAW  OF  CONTRACTS.  69 

as  to  whether  a  contractor  after  having  built  a  structure  upon,  or  driven  a 
canal  through,  Federal  property,  or  diverted  a  stream,  or  appropriated  the 
waters  of  a  pond,  or  constructed  an  outlet  for  a  sewer,  or  directed  a  sewer 
into  an  unpolluted  stream,  any  of  which  acts  is  an  unlawful  act,  and  which 
has  been  the  Consideration  for  his  contract,  could  recover  on  such  a  contract 
for  what  he  has  done.  It  has  been  held  that  a  party  could  not  avoid  a  con- 
tract on  the  theory  that  the  doing  of  extra  work  was  malicious  mischief, 
because  the  extra  work  required  the  contractor  to  dig  or  excavate  in  a  street 
without  proper  license,  which  was  an  unlawful  act.1 

A  contract  to  build  houses  on  a  disused  unconsecrated  burial-ground, 
necessitating  the  removal  of  many  corpses,  has  been  held  illegal;3  and  it  has 
been  held  that  no  recovery  could  be  had  under  a  contract  to  grade  a  street, 
for  earth  filled  outside  the  street-line  and  included  in  the  slopes,  and  which 
had  been  deposited  on  private  property,  as  it  was  an  unlawful  act  without 
the  cons.ent  of  the  owner,3  but  the  fact  that  a  part  of  the  improvement  was 
on  private  property  did  not  prevent  the  contractor  from  recovering  for 
work  done  on  the  street.4  Recovery  has  been  allowed  a  contractor  who 
built  a  bridge  and  some  track  without  the  railroad  company's  territory,  the 
contract  for  which  was  void,  where  it  appeared  that  the  company  had  pos- 
session and  enjoyed  the  benefit  of  the  structures.5  The  act  of  the  city  in 
preventing  the  contractor  from  improving  a  street  in  which  the  city  had  no 
right  of  way  does  not  give  the  contractor  a  right  to  recover  as  for  breach 
of  contract,  as  the  contract  was  void.6 

Instances  are  numerous  in  the  engineering  profession  where  contracts 
have  been  taken  to  build  structures  or  do  work  by  processes  that  are  pat- 
ented, the  execution  of  which  could  be  stopped  by  an  injunction  and  the 
performance  of  which  would  be  unlawful,  but  whether  the  contractor  would 
be  excused  and  the  contract  declared  illegal  may  well  be  doubted.7  Such 
might  be  cases  of  patent  processes  or  patent  apparatus  required,  such  as 
patent  heating  apparatus,  patent  pavements,  etc.  A  contract  to  publish  a 
copyrighted  book  without  permission  of  the  author,  or  to  act  a  play,  or  to 
copy  a  picture  without  permission  of  the  artist  would  be  of  the  same 
character.* 

Contracts  to  erect  structures  the  maintenance,  ownership,  and  use  of 
which  are  contrary  to  law  are  not  binding.  Such  are  contracts  in  violation 
of  local  ordinances  and  building  regulations,  as  those  fixing  the  thickness  of 

1  Bernstein    v.   Downs  (Cal.),   44   Pac.          *  Cunningham  v.  Massena  Springs  R. 
Rep.  557.  Co.  (Sup.),  18  N.  Y.  Supp.  600. 

2  Gibbons  v  Chalmers,  1   C.  &  E.  577          •  Sang  ®.  Duluth  (Minn.),  59  N.  W.  Rep. 
[1885].  878;  Becker  v.  Phila.  (Pa.),  16  All.  Rep. 

a  Davies  v.  E.  Saginaw  (Mich.),  32  N.  W.  625  [1889]. 

Rep.  919  [18V7]  ''See  cases  in  Dillon's  Munic.  Corp'ns. 

4  Johnson  «.  Duer  (Mo.),  21  S.  W.  Rep.  (4th  ed.,  1890),  §  468,  §  467  note. 
800. 

*  See  Sees.  216-225,  infra. 


70          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§77. 

ivalls.1  It  has  been  held  that  a  carpenter  and  builder  could  not  recover  for 
work  he  had  performed  upon  a  bowling-alley  in  the  state  of  Ohio,  the  build- 
ing being  unlawful  property.2  For  labor  and  materials  furnished  for  the 
erection  of  an  awning  which  is  forbidden  by  a  city  ordinance  no  recovery 
was  allowed,  neither  upon  the  express  contract  with  the  owner  nor  upon 
an  implied  contract,  as  on  a  quantum,  meruit.  The  law  will  not  assist  those 
who  have  transgressed  its  commands,  but  leaves  the  parties  where  they 
liave  placed  themselves.'  * 

When  a  statute  prohibits  every  contribution  of  money  to  promote  the 
election  of  any  person  or  ticket,  except  for  expenses  of  printing  and  the 
circulation  of  handbills  and  other  papers  previous  to  such  election,  an 
an  agreement  to  pay  $1000  to  one  who  had  built  a  log  cabin  for  campaign 
meetings  in  consideration  that  he  would  keep  it  open  for  the  accommoda- 
tion of  political  meetings  to  further  the  success  of  certain  candidates  nomi- 
nated for  congress  was  held  illegal  and  not  enforceable.4 

Contracts  for  the  erection  of  a  building  in  violation  of  a  city's  building 
regulations,  such  as  pertain  to  safety  of  the  structure  and  infringement 
of  others'  rights  and  the  protection  of  citizens,  may  be  declared  invalid.5 
It  has  been  "held  that  a  contract  to  erect  a  proper  and  legal  building  is 
avoided  by  an  ordinance  passed  two  days  after  the  contract  was  made  pro- 
hibiting the  erection  of  such  a  building.6  A  contract  to  erect  a  building 
prohibited  by  the  statute  will  not  become  valid  by  reason  of  the  subsequent 
repeal  of  the  statute.7  A  contract  executed  in  consideration  of  a  previous 
illegal  contract  is  also  void.8 

77.  The  act  must  not  be  to  commit  a  crime  or  a  misdemeanor,  or  to 
injure  others  in  the  enjoyment  of  their  rights. 

78.  The  agreement  must  not  be  for  the  sale  or  supply  of  adulterated 
goods,  or  of  intoxicating  liquors  in  violation  of  excise  laws  prohibiting 
traffic  in  them. 

79.  The  act  must  not  require  either  party  to  violate  the  Sabbath  laws 
or  to  ignore  the  laws  and  regulations  of  society,  f 

80.  The  act  must  not  be  to  effect  something  in  contravention  of  the  law 
or  public  policy  or  in  violation  of  judicial  morals;  to  do  what  the  law  for- 
bids or  to  neglect  what  the  law  requires." 

1  Stevens  «.  Gourley,  7  C.  B.  N.  S.  99.  6  Stevens  v.  Gourley,  7  C.  B.  N.  S.  99; 

*   Spurgeon  v.  McElwain,  6  Ohio  442;  Burger  v.  Roelsch  (Sup.),  28  N.  Y.  Supp. 

see  also  14  Amer.  &  Eng.  Ency.  Law  786.  460. 

3  Brinkman  v.  Eisler,  16  N.  Y.  Supp.  154,          6  McMillin  v.  Walker,  21  N.  B.  R  31. 
and  many  cases  cited;    and  see  another          7 Banchor  v.  Mansel,  9  Amer.  &  Eng. 
awning  case,  Simis  v.  Brookfield,  34  N.  Y.  Ency.  Law  881,  and  cases  cited. 

Supp.  695  ;  and  see  Ellwood  v.  Mani  (Com.  8  Gate  v.  Blair,  6  Coldw.  639  :  Pierce  v. 

PI.),  16  Pa.  Co.  Ct.  Rep.  474 ;  and  Harper  Kibbee,  51  Vt.  559  ;  King  v.  Winanto,  71 

v.  Joneshoro  (Ga.),  22  S.  E.  Rep.  139  N.  C.  469,  also  73  N,  C.  563. 

4  Jackson  v.  Walker,  5  Hill  (N.  Y.)  127  9  9  Amer.  &  Eng.  Eucy.  Law  880. 
[1843]. 

*  See  Sec.  SI, infra.  \  See  Sec.  59,  supra. 


§81.]  LAW  OF  CONTRACTS  71 

81.  The  Undertaking  must  Not  Have  for  Its  Object  the  Creation  of  a  Mon- 
opoly.—Such  acts  are  attempts  by  the  officers  of  cities,  railroads,  and  other 
corporations  to  grant  exclusive  rights  or  franchises  to  individuals  and  other 
companies,  as  "  the  exclusive  right  to  sell  water  to  a  city,"  1  "  the  exclu- 
sive right  to  maintain  and  construct  a  telegraph-line  along  a  railroad."''  A 
contract  by  a  railroad  company  granting  to  a  hackman  the  exclusive  right 
to  bring  his  hacks  into  its  depot  grounds  has  been  held  not  against  public 
policy.3  But  a  contract  by  a  town  to  give  to  one  party  an  exclusive  right 
or  franchise  for  many  years  to  light  its  streets  and  its  residences  is  a 
monopoly,  and  cannot  be  enforced.4  The  granting  of  exclusive  privileges 
to  telegraph  companies  to  run  wires  along  the  line  of  a  railroad  or  to  lay  an 
oil-line  across  a  large  tract  of  land  is  void  as  tending  to  create  monopolies.5 

A  railroad  company  may  not  agree  to  refrain  from  applying  to  the  legis- 
lature for  a  land  grant  and  to  assist  another  railroad  company  in  getting  it. 
Such  a  contract  is  void,  even  though  it  stipulates  that  the  means  employed 
in  securing  the  grant  shall  be  reasonable  and  proper.8  A  contract  not  to 
sell  water  rights  to  any  other  person  or  persons  under  a  penalty  called  liqui- 
dated damages,  and  not  to  make  any  settlement  or  compromise  with  other 
parties,  is  void  as  imposing  a  restraint  upon  compromises  of  litigation  and 
disputes.7 

Certain  cases  may  be  recited  to  show  how  near  the  line  one  can  walk 
and  yet  keep  within  public  policy.  Thus  it  has  been  held  that  two  railroad 
companies  whose  lines  are  parallel  may  agree  to  extend  their  lines  so  as 
not  to  interfere  with  one  another,  the  agreement  being  made  to  prevent  an 
unprofitable  war  of  construction.8  A  contract  by  a  railroad  company  by 
which  it  agrees  to  give  all  its  ferry  business  at  a  certain  point  to  one  com- 
pany and  to  employ  none  other  has  been  held  a  good  and  valid  contract.* 
An  agreement  to  refrain  from  forming  a  corporation  for  the  construction 
of  waterworks  and  from  carrying  on  or  prosecuting  such  work  so  that 
another  may  incorporate  for  that  purpose  and  conduct  the  business  without 
competition  is  not  void  as  against  public  policy.10  An  agreement  by  a 
vendor  in  consideration  of  the  sale  of  a  lot  not  to  build  a  flat  in  the  imme- 
diate neighborhood  is  not  against  public  policy  as  being  in  restraint  of 
trade.11 

1  Davenport  v>.  Kleinschmidt  (Mont.),  13  6  Chippewa,  etc.,  Ry.  -y.  Chicago,  etc., 
Pac.  Rep.  249  [1887].  Ry.,  44  N.  W.  Rep.  17. 

2  Pac.  Tele.  Cable  Co.  v.  W.  Union  Tele-  7  Ford  v.  Gregson  (Mont.),  14  Pac.  Rep. 
graph  Co.,  50  Fed.  Rep.  493.  659  [1887]. 

3  Br.»wn  v.  N.  Y.  Cent.,  etc.,  R.  Co.,  27  8  Ives  «.  Smith,  8  N.  Y.  Supp.  46. 

N.  Y.  Supp.  69.  9  Wiggins  Ferry  Co.  v.  C.  &  A.  R.  Co., 

4  Saginaw  Gas  &  Light  Co.  t>.  Saginaw      73  Mo.  389  [1881]. 

(U.  S.  Cir.  Ct.)  (Mich.),  22  The  Reptr.  579  10  Oakes  v.  Cattaraugus  Water  Co.  (N. 

[1886];  Gale  v.  Kalamazoo,  23  Mich.  344.  Y.),  38  N.  E.  Rep.  461. 

6  y  Amer.  &  Eng.  Ency.  Law  892;  Union  »  Lewis».  Gallner  (N.  Y.),  29  N.  E.  Rep. 

Trust  Co.  v.  Atchison,  etc.,  R.  Co.  (N.  M.)f  81,  reversing  14  N.  Y.  Supp.  362. 
43  Pac.  Rep.  701. 


72          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  82. 

Contracts  in  general  for  total  restraint  of  trade,  or  contracts  for  the  pur- 
pose of  creating  a  monopoly,  or  compacts  having  for  their  object  the  eleva- 
tion or  depression  of  the  market  prices,  or  to  raise  or  lower  the  prices  of 
goods  and  produce,  or  sales  of  stocks,  grain,  and  produce  on  margins,  or 
option  contracts  whose  effect  is  to  corner  the  markets,  are  held  to  be  against 
public  policy  and  void.1 

82.  Contracts  Not  to  Bid  or  Compete. — If  the  undertaking  is  to  prevent 
competition  in  trade  at  public  sales  or  in  bidding  for  public  work  it  is 
against  public  policy.  A  compact  entered  into  by  members  of  a  trade-union 
to  establish  and  maintain  uniform  rates  of  charges  and  to  prevent  competi- 
tion among  its  members  is  illegal,  and  one  party  cannot  maintain  an  action 
against  another  who  has  underbid  him.2  A  contract,  or  a  note  given  by 
reason  of  an  agreement,  between  contractors  who  belong  to  an  association  of 
masons  and  builders,  the  by-laws  of  which  require  the  members  to  pay  to  the 
association  6  per  cent,  on  all  contracts  taken  by  them,  and  to  submit  all 
bids  for  work  first  to  the  association,  and  which  provide  that  the  lowest  bid- 
der shall  add  6  per  cent,  to  his  bid  before  it  is  submitted  to  the  owner  or 
his  architect,  is  contrary  to  public  policy  and  void.3 

Contracts  by  builders  or  bidders  to  refrain  from  bidding  against  each 
other  for  public  works  or  to  share  the  profits  with  others  not  bidding  at  a 
public  sale,  or  any  agreements  which  tend  to  destroy  competition,  which  the 
law  requires  before  the  contract  is  awarded,  or  to  induce  a  sacrifice  of  the 
property  sold,  are  illegal  and  void.*  However,  an  agreement  to  bid,  the 
object  of  it  being  fair,  is  not  void.5  It  is  a  fraud  upon  the  public  for  persons 
to  obligate  themselves  not  to  bid,  or  not  to  bid  beyond  a  certain  sum.6  An 
agreement  to  pay  certain  commissions  to  a  person  who  shall  become  a  mock 
subscriber  and  purchaser  of  house-lots,  which  the  owner  is  to  take  back  off 
his  hands  if  he  does  not  wish  to  keep  them,  the  object  being  to  induce 
others  to  purchase,  is  against  public  policy.7*  Contracts  by  companies  who 
have  been  competitors  who  agree  not  to  compete  with  each  other  either  as 
railroads  for  traffic,  but  to  divide  their  earnings; 8  or  as  gas  companies,  not 
to  compete  in  certain  districts  of  a  city,  will  not  be  enforced.9  A  railroad 
pooling  contract,  the  evident  object  of  which  is  to  stifle  competition  for  the 
purpose  of  raising  rates,  is  void  as  contrary  to  public  policy.10 

1  Illegal  Contracts,    9    Amer.    &    Eng.  also  McMullen  0.  Hoffman  (C.  C.),  75  Fed. 

Ency.  Law  879.  Rep.  547. 

>J  Moore  0.  Bennett  (111.),  29  N.  E.  Rep.  888.  7  McDonnell  t>.  Rigney  (Mich.),  66  KW. 

3  Milwaukee  Masons'  &  Builders'  Ass'ii  Rep.  52;  Atlas  Nat.  Bank  v.  Holm  (G.  C. 
0.  Niezerowski  (Wis.),  70  N.  W.  Rep.  166.  A.),  71  Fed.  Rep.  489. 

4  9  Amer.  &  Eug  Ency.  Law  898;  People  8  Texas  &  R.  Ry.  Co.  v.  So.  Pac.  R.  Co. 
0.  Stevens,  71  N.  Y.  527;  Durfee  v.  Moran,  (La.),  6  So.  Rep.  888. 

57  Mo.  374  [1874].  » Chicago   G.  L.  Co.    0.    Peop'.e's  G.  L. 

5  Wicker  v.  Hoppock,  6  Wall.  94  [1867];  Co.  (111.).  13  N.  E.  Rep.  169  [1887]. 
Flanders  o.Wood  (Tex.),  18  S.W.Rep.572,  10  Chicago,  M  &  St.  P.  Ry.  Co.  v.  Wa- 
between  competing  architects.  bash,  St.  L.  &  P.  Ry.  Co.  (C.  C    A  )    61 

•Hunter  0.    Pfeifer,  108    Ind.   197;  see      Fed.  Rep.  993. 

*See  Lowest  Bidder,  Chap.  VI.,  Sec.  148,  infra. 


§83.]  LAW  OF  CONTRACTS.  73 

83.  Contracts  that  Promote  Gambling. —It  is  against  the  policy  of  the= 
law  to  sustain  gaming  or  gambling  contracts,  whether  at  games  of  chance 
or  on  the  stock-market;  or  even  to  enforce  agreements  to  repay  money  bor- 
rowed for  the  purpose  of  gambling.1    Anything  which  induces  a  man  to  risk 
his  money  or  property  without  any  other  hope  of  return  than  to  get  for 
nothing  any  given  amount  from  another  is  gambling  and  demoralizing  to 
the   community.     All  gambling  is   immoral,  and,  wagering  or  gambling 
agreements  being  in  violation  of  the  law  and  in  the  nature  of  a  publio 
wrong,  have  no  legal  effect.     Money  lent  for  the  express  purpose  of  settling 
losses  on  illegal  stock-jobbing  transactions  to  which  the  lender  was  no  party,, 
cannot  be  recovered  back.     It  being  unlawful  for  one  man  to  pay,  it  cannot 
be  lawful  for  another  to  furnish  him  with  the  means  of  paying.     The  mere 
fact  that  a  lender  of  money  knew  that  it  was  to  be  used  for  gambling  in  oil 
is  not  sufficient  to  defeat  a  recovery  unless  he  confederated  with  the  bor- 
rower for  its  unlawful  use.a  * 

84.  The  Act  Must  Not  be  Inconsistent  with  the  Duties  and  Obligations  of 
a  Party  Who  has  Undertaken  It. — Such  duties  and  obligations  may  be  due  to- 
the  public,  or  they  may  be  such  as  arise  from  fiduciary  relations,  as  those  of 
an  agent  to  his  employer,  or  of  an  officer  to  his  company,  or  of  a  trustee  to  hia 
beneficiary.     Thus  it  has  been  repeatedly  held  that  the  officers  of  a  railroad 
company  cannot  agree  to  locate  its  depot  at  a  particular  point,3  or  the  route 
of  its  road  through  a  certain  place.4     If  the  contract  tends  to  sacrifice  the- 
interests  of  stockholders  or  of  the  public  it  is   against  public  policy  and 
therefore  not  valid.5    The  agreement  is  not  of  itself  void,6  and  will  hold  if 
the  company's  and  public  interests  have  not  suffered.7 

An  interesting  case  came  before  the  courts  in  Oregon,  where  one  IL 
being  director  and  president  of  a  railroad  company  and  owner  of  a  control- 
ling interest  in  the  stock,  agreed  for  a  money  consideration  to  cause  the  line 
of  railroad  to  be  relocated  over  a  longer  and  more  expensive  route;  the 
contract  was  held  to  be  contrary  to  public  policy.  It  was  held  that  a  rail- 
road company  was  a  sort  of  public  corporation,  and  that  its  officers  were 
bound  to  be  disinterested  in  the  consideration  of  public  questions.8 

85.  A  Fiduciary  Can  have  No  Personal  Interest  in  His  Principal's  Contract. 
— Independent  of  the  fact-  that  a  railroad  company  is  a  quasi-public  cor- 

'Stebbinsfl.  Leowolf,  3  Gush.  137  [1849].          6  Railroad   Co.   v.  Ralston,  41   Ohio  St. 

2  Waugh  v.  Beck  (Pa.),  6  Atl.  Rep.  923      573. 

[1886].    '  7  Frey  v.  Ft.  Worth  &  R.  G.  Ry.  (Tex.), 

3  Florida    Cent.    &  P.    R.    Co.  v.    State  24  S.  W.  Rep.  950;  Bank  t>.  Hendrie,    4& 
(Fla.),  13  So.  Rep.  103:  Northern  Pac.  R.  Iowa  402  [1878]:  Mills  County  v.  B.  &  M. 
Co.  «.    Territory  (Wash),  13    Pac.    Rep.  R.  Co.,  47  Iowa  66  [1877]. 

604  [1887].  8  Holiday  v.  Petterson,  5  Oregon  177 

4 Linderfl.  Carpenter,  62  111.  309  [1872];  [1874];  1  Redfield  on  Rys.  577,  §  140; 

also  13  111.  App.  568.  Fuller  v.  Dame,  18  Pick.  472;  Pacific  R. 

5Bestor  v.  Wathen,  60  111.  138  [1871].  Co.  v.  Seeley,  25  Mo.  212;  Bestor  v.  Wat- 

hen,  60  111.  138  [1871]. 

*  See  Sec.  75,  supra. 


74          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  85. 

poration,  the  fiduciary  relation  of  an  agent,  engineer,  officer,  or  director  of  a 
corporation  to  his  company  and  its  stockholders  would  prevent  him  from 
having  any  personal  interest  in  a  contract.1  A  contract  by  a  freight-agent 
to  share  with  a  contractor  in  the  profits  of  a  contract,  the  only  service  of  the 
freight-agent  being  to  allow  the  contractor  a  low  freight  rate  on  materials 
of  construction,  is  void  as  against  public  policy.2  An  agreement  by  the 
bookkeeper  of  a  corporation  to  disclose  its  financial  condition  to  another  is 
void,  and  it  is  immaterial  that  such  other  is  a  stockholder  of  the  corpora- 
tion.3 An  agreement  between  two  real-estate  agents  representing  different 
principals  to  divide  commissions  in  case  they  effect  a  sale  between  their 
respective  principals  is  void  as  against  public  policy,  and  the  fact  that  tho 
sale  was  effected  at  the  valuation  that  each  principal  had  set  on  his  property 
with  his  agent  will  not  give  validity  to  the  agreement.4  A  contract  made 
by  a  person  on  behalf  of  two  parties  and  acting  in  the  capacity  of  agent  for 
both  is  voidable.  It  must  be  ratified  or  adopted  to  become  binding.  Such 
a  contract  may  be  ratified  by  a  municipal  corporation.6  An  agreement  by 
the  superintendent  and  general  manager  of  a  mill  company  in  consideration 
of  five  thousand  dollars  to  use  his  influence  and  authority  to  secure  the  re- 
moval of  the  mill  to  another  place  and  the  extension  of  its  logging-roads  to 
that  place  is  void  as  against  public  policy.8  So  where  an  architect  and  de- 
fendant agreed  to  build  houses  for  sale,  the  latter  to  advance  the  money  and 
the  former  to  contribute  his  skill  and  time  as  superintendent,  each  to  have 
half  of  the  profits  after  sale,  it  was  held  that  the  defendant  could  not  charge 
plaintiff  with  the  land  used  for  building  purposes  at  a  greater  price  than  its 
original  cost,  though  it  was  bought  with  money  furnished  by  him  and  the 
title  was  taken  in  his  name.7 

However,  a  contract  founded  on  a  promise  to  disclose  information  as  to  a 
place  where  a  railroad  company  intended  to  locate  itt  depot  is  not  void  as 
against  public  policy  where  there  is  nothing  to  show  that  the  plaintiff  ob- 
tained his  information  by  reason  of  any  relation  of  trust  or  confidence  that  he 
bore  to  the  railroad  company,  or  that  it  had  any  interest  in  the  subject- 
matter  of  the  contract,  or  that  it  attempted  to  keep  the  location  of  the  depot 
a  secret.8  * 

86.  A  Man  Cannot  by  Contract  Forfeit  Certain  Rights  and  Privileges 
the  Protection  of  Which  the  Law  Guarantees.—"  The  Declaration  of  Inde- 
pendence holds  the  truth  self-evident  that  all  men  were  endowed  by  their 
Creator  with  certain  inalienable  rights  ;  that  among  these  are  life,  liberty,  and 

1  Bestor  t>.  Wathen,  60  111.  138.  5  City  of  Findlay  ®.  Pertz  (C.  C.  A.),  66 

'Barclay  v.  Williams,  26  111.  App.  213  Fed.  Rep.  427. 

11887].  6Lum«.  Clark  (Minn.),  57KW.  Rep.  662. 

3  Davenport  «.  Hulme  (Super.),  32  K  Y.  7  Budd  v.  Scudder  (N.  J.  Ck.)t  26  Atl. 
Supp.  803.  Rep.  904. 

4  Levy  v.  Spencer  (Colo.  Sup.),   33  Pac.  8  Green  t>.  Brooks  (Cal.),  22  Pac.   Rep. 
Rep.  415.  849  ;  but  see  Wills  v.  Abbey,  27  Tex.  202. 

*  And  see  Sec.    42,  supra. 


§  86.]  LAW  OF  CONTRACTS.  75 

the  pursuit  of  happiness  ";  and,  being  inalienable,  no  one  can  give  them  away 
for  or  as  a  consideration  ;  and  to  these  might  have  been  added  one's  char- 
acter, religion,  citizenship,  and  many  other  things  which  cannot  be  for  sale 
or  subjects  of  exchange.1 

Such  an  agreement  would  be  against  the  policy  of  the  law,  and  against 
public  policy.  If  the  undertaking  tends  to  injustice  or  oppression,  restraint 
of  liberty,  commerce,  or  natural  or  legal  right  ;  if  it  tends  to  obstruct  jus- 
tice, or  to  violate  the  law,  or  is  against  good  morals — it  is  against  public 
policy  and  cannot  support  a  contract.2  It  does  not  matter  that  the  parties 
are  innocent  of  any  design  to  violate  the  law  ;  if  the  effect  of  their  agree- 
ments or  acts  is  against  the  laws  or  public  policy,  theji  the  contract  must 
fail. 

It  is  contrary  to  public  policy  for  a  person  to  make  agreements  to  forego 
his  inalienable  natural  rights.  A  contract  by  which  a  person  agrees  not  to 
•demand  damages  or  compensation  for  injuries  that  may  arise  from  another's 
acts  or  negligence  is  within  this  class.  Such  contracts  are  those  of  carriers 
of  freight  and  passengers,  as  railroad,  express,  and  telegraph  companies, 
that  seek  to  avoid  or  limit  their  responsibility  for  negligence  or  delay  in 
transporting  or  delivering  goods  or  messages  by  notices,  clauses,  conditions, 
or  even  by  deeds.  Such  agreements  and  contracts  have  frequently  been 
declared  inoperative  and  void.3  It  may  be  doubted  even  if  they  may  so 
contract  with  persons  carried  gratuitously,  i.  e.,  with  persons  traveling  on 
free  passes.  It  has  frequently  been  held  that  they  could  not,  though  there 
are  cases  to  the  effect  that  they  can.4  A  railroad  company  was  held  liable 
for  causing  the  death  of  a  passenger  by  the  negligence  of  its  employees  not- 
withstanding he  was  at  the  time  riding  upon  a  free  pass  upon  which  was  a 
stipulation  signed  by  him  releasing  the  company  from  all  liability  for 
injury  to  his  person  or  property  while  using  the  pass.*  A  contract  on  a 
telegraph-message  blank  that  the  company  will  not  be  liable  for  but  ten 
times  the  cost  of  sending  the  message  has  been  held  invalid  so  far  as  the 
damage  is  the  result  of  negligence  on  the  part  of  the  company  or  its 
servants.5 

Parties  cannot  by  private  agreement  in  advance  of  a  controversy  oust 
the  courts  of  their  proper  jurisdiction.  It  is  true  that  a  matter  in  contro- 
versy or  a  pending  civil  suit  may  be  finally  submitted  to  arbitration  or  to  the 

1  9  Amer.  &  Eng.  Ency.  Law  883.  Jour.  404     A  recent  ^ase  carried   to  the 

2  9  Amer.  &  Eng.  Ency.  Law  880.  conrt  of  appeals   in  i\eTv  York  held  not. 

3  9  Amer.    £  Eng.  Etiry.  Law  913  ;  26  Porter  v.  N.  Y.  L.  E.  &  W.  R.  Co.,  129  K 
Amer.  Law  Rev'w  212  [18921  ;  21  Amer.  Y.  624,  [Dec.   1891];  see  also  Rose  v.  Des 
La  v  Rev'w  506  ;  L   S.  &  M.  S.  Rv   Co.  ».  Homes  R.,  39  Iowa  246,  20  Amer.  Ry.  Rep. 
Spangler  (Ohio),  2°  The  Remr.  734  [18861,  326;  find  many  cases  cited  in  note  p.  338. 
44  Oh:o  fit.  471  :  Porter  v.  N.  Y.  L.  E.  &  5Marr  v.  Telegraph  Co.  (Tenn.),  3  S.  W. 
W.  R.  Co.,  129  N.  Y.  624  [18911.  Rep.  496  [1887],  85  Tenn.  529. 

4  See  cases  just  cited,  and  see  36  Alb.  Law 

*  See  Engineers'  and  Architects'  Employment,  Sec.  264,  infra. 


76          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  86. 

decision  of  a  single  judge,  or  by  omitting  to  exercise  their  rights  the  parties 
may  waive  them  as  they  choose,  but  they  cannot  by  an  agreement  in  advance, 
when  no  matter  of  dispute  or  controversy  has  yet  arisen,  forfeit  their  rights 
to  a  proper  adjudication  in  the  appropriate  tribunal  established  by  law  when 
a  proper  case  may  be  presented.1  It  is  a  constitutional  right,  and 
neither  a  statute  by  the  state  nor  an  agreement  of  the  parties  made  in 
advance  under  it  can  justify  a  denial  of  the  right.' 

It  is  true  that  parties  may  impose  as  a  condition  precedent  to  an  applica- 
tion to  the  courts  that  they  shall  first  have  settled  the  amount  to  be  received 
by  an  agreed  mode  of  liquidation  or  adjustment,  and  this  in  many  cases 
provides  a  much  more  appropriate  tribunal  for  the  purpose  than  a  jury.* 
The  principle  involved  in  these  cases  does  not  close  the  access  of  the 
parties  to  the  courts  of  law,  as  the  award  of  the  arbiter  is  only  enforceable 
there.  On  the  same  ground  it  is  against  public  policy  to  sustain  an  agree- 
ment by  an  employee  that  an  officer  of  the  company  employing  him  shall 
be  the  sole  judge  of  the  damages  to  be  assessed  for  breach  of  the  company's 
rules,  and  that  the  officer's  decision  shall  be  final  and  conclusive  of  the 
rights  of  the  employee  ; 4  but  it  has  been  held  that  a  contract  by  which  a 
railroad  employee  agreed,  on  becoming  a  member  of  the  relief  department 
of  the  company,  that  the  acceptance  of  relief  from  such  department  on  being 
injured  should  bar  his  right  to  sue  the  railroad  company  for  the  injury  is 
not  one  against  public  policy/  It  is  not  invalid  in  that  it  restricts  the 
liabilities  of  railroads  for  the  negligence  of  their  employees.6  Nor  is  it 
void  for  want  of  mutuality  nor  for  lack  of  consideration.7  It  is  on  this 
same  ground  of  public  policy  that  agreements  by  contractors  to  abide  the 
decisions  of  civil  engineers  and  architects  as  final  and  conclusive,  without 
recourse  to  courts  of  law  or  equity,  have  been  declared  not  binding,  illegal, 
and  void.  The  courts  have  held  that  the  government  guarantees  every  man 
the  protection  of  the  courts  and  their  assistance,  and  that  no  man  can  enter 
into  a  contract  that  shall  deny  him  this  privilege  and  right. 

A  contract  of  employment  between  a  company  using  patented  machines 
and  a  mechanical  engineer  which  requires  that  any  improvements  in  the 
machines  made  by  such  engineer  shall  belong  to  the  company  is  not  unrea-* 
sonable  nor  contrary  to  public  policy.8* 

1  See  Ins.  Co.  «.  Marse,  20 

2  See  Atlanta  &  R  Co.  v.  Mon  j 
266;  Nate  v.  Hamilton   Ins. 

174;  Hobbs  v.  Manhattan  Ins.  Co.,  55  Me.  Shaver   v.    Penna.    Co.    (C.  C.),    71    Fed. 

421  :  Scott  0.  Averv,  5  H.  of  L.  Cas.  811 ;  Rep.  931. 

Story  Eq.  Jur.,  §670.  6  Donald  V.   Chicago,  B.  &  Q.  Ry.    Co. 

'Motion.  Nav.  Co.  v.  Fenlon,  4  W.  &  S.  (Iowa),  61  N.  W.  Rep.  971. 

205;  7  Casey  306;  79  Pa.    St.  480,    citing  'Pittsburgh,  etc.,  R.  Co.  v.   Cox,  supra, 

engineering  cases  to  support  them.  8  Hulse  v.  Bonsack  Much.  Co.  (C.  C.  A.), 

4  Whiter  Middlesex  R.  Co.,  135  Mass.  65  Fed.  Rep.  864. 
216  [1883]. 

*  See  Sees.  216-225,  infra* 


^  Wall.  445.  5  Chicago.  B  &  Q.  R.  C  >  v  Bell  (Neb.), 

onghan, 49 Ga.      62  N.  W.  Rep.  314;  Pittsburgh,  etc.,   R. 
5.    Co.,  6  Gray      Co.  «.  Cox  (Ohio  Sup.),  45  N.  E  Rep.  641 ; 


§87.]  LAW  OF  CONTRACTS.  77 

87.  Immoral  Contracts. — A  contract  for  immoral  or  indecent  purposes 
will  not  be  sustained  ;  if  it  is  to  effect  an  immoral  object  it  will  not  be 
enforced.  An  agreement  to  pay  money  for  the  use  of  a  carriage  or  of  a 
house  or  of  furniture  which  is  to  be  used  for  immoral  purposes  will  not  be 
enforced  ;  and  the  same,  it  is  submitted,  might  hold  true  if  a  contractor  had 
built  a  house  or  fitted  up  quarters  knowing  they  were  to  be  employed  for 
indecent  or  unlawful  purposes,  or  for  any  purpose  that  tends  to  induce  im- 
morality.1 Such  might  be  the  erection  of  a  still  for  illicit  distillation,  or 
the  fitting  and  furnishing  of  a  barroom  in  a  no-license  state,  or  the  erection, 
or  furnishing  of  a  house  of  prostitution  or  for  gambling,2  or  possibly  of  a 
bucket-shop  or  even  a  stock  exchange.3  *  An  owner  who  has  parted  with 
the  possession  of  his  personal  property  under  a  contract  which  is  against 
good  morals  and  void  as  against  public  policy,  the  law  will  not  aid  him  to 
recover  the  possession  of  such  property,  but  will  leave  the  parties  in  the  situ- 
ation in  which  they  have  placed  themselves.4 

All  contracts  having  for  their  object  the  "making  of  matches"  for 
marriages,  or  the  separation  of  man  and  wife,  or  to  restrain  the  freedom 
of  marriage  or  the  right  of  selection  of  a  companion,  or  to  prohibit  mar- 
riage, are  against  public  policy,  illegal,  and  void.6  Therefore  a  contract 
intended  to  facilitate  the  procuring  of  a  divorce  at  the  suit  of  either  of  the 
parties  thereto  is  void.'  A  contract  to  sell  letters  from  persons  who  are  dis- 
eased to  a  person  who  advertises  articles  and  instruments  to  cure  them  is 
contrary  to  good  morals  and  void.7  No  recovery  can  be  had  for  the  expense 
of  printing  an  immoral  publication.8 

Illicit  intercourse  is  not  a  consideration  for  a  promise  to  marry,  and  a 
promise  to  marry  a  woman  if  she  will  give  herself  up  to  the  promisor  is 
tainted  with  immorality  and  is  not  a  legal  contract.  Such  a  contract  must 
be  distinguished  from  a  promise  to  marry  and  the  promisor  afterward  taking 
advantage  of  the  trust  and  confidence  imposed  in  him.' 

The  defense  of  public  policy  proceeds  not  upon  the  idea  of  relief  to  the 
defendant,  but  protection  to  the  public,  and  it  is  immaterial  that  a  defend- 
ant was  ignorant  of  the  illegality.10  It  is  not  therefore  necessary  to  plead 
public  policy  to  prevent  a  recovery  on  a  contract  invalid  as  against  public 
policy.11 

'9    Amer.   &    Eng.    Ency.    Law    921;  6  Wilde  v.  Wilde  (Neb.),  56 N.  W.  Rep. 

Pearce  ®.    Brooks,  L.    R.    1    Exch.    213  ;  724. 

ReerU  Brewer  (Tex.),  36  S.  W.  Rep.  99.  7Rice   to.    Williams,   32  Fed.   Rep.   437 

2  Contra  Michael  «.  Bacon,  49  Mo.  476,  [1887]. 

and  cases  cited.  8  Poplett  v.  Stockdale,  2  C.  &  P.  198. 

*  See  cases  collected  in  9  Amer.  &  Enir.  9  Hanks  v.  Waglee,  54  Cal.  51    [1879]; 

Ency.  Law  922.    Reed  v.   Brewer,  supra,  Bourngueres  #.  Boulon,  54  Cal.  146  [1880]  ; 

held  that  notes  given  for  furniture  for  a  Saxon  v.  Wood  (Ind.),  30  N.  E.  Rep.  797. 

house  of  prostitution  were  void.  10  Church  0.  Proctor  (C.  C.  A.),  66  Fed. 

4  Hutchins  v.  We  Idin,  114  Ind.  80  [1887].  Rep.  240. 

6  9  Amer.  &  Eng.  Ency.  Law  918-921.  »  Sheldon  v.  Pruessner  (Kan.^    35  Pac. 

Rep.  201. 

*  See  Sec.  76,  supra. 


78  ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  87. 


When  the  immediate  object  of  an  agreement  is  unlawful  the  agreement 
is  void/  and  a  contract  executed  in  consideration  of  a  previous  illegal  one  is 
void.'' 

A  contract  otherwise  valid  is  not  void  in  toto  merely  because  in  certain 
independent  particulars  it  is  broader  than,  or  goes  beyond  the  scope  of,  the 
law.8 


1  Pollock  on  Contracts  (4th  ed.)  321. 

2  Gate  v.  Blair,  6  Coldw.  639  ;   Pierce  v 
Kibbee,  51  Vt.  559  ;  King  v.  Wiuanto,  71 
N.  C.  469,  also  73  N.  C.  563. 

8Ragsdale  0.  Nagle  (Gal.),  39  Pac.  Rep. 


628;  Arnot  v.  Coal  Co.,  68  K  Y.  558.  A 
case  of  making  the  price  of  coal,  the 
plaintiff  had  assisted  in  facilitating  the 
Illegal  act.  And  see  2  Keener 's  Cases  on 
Quasi-ContTacts  35. 


CHAPTER  IV. 

LAW  OF  CONTRACTS.    ESSENTIAL  ELEMENTS  OF  A  CONTRACT. 
MUTUAL  CONSENT  OR  MUTUAL  ASSENT. 

88.  There  Must  be  Mutual  Understanding.— The  fourth  essential  element 
of  a  valid  and  binding  contract  is  a  mutual  understanding  between  the  par- 
ties as  to  the  essential  terms  of  the  agreement  between  the  parties;  there 
must  be  privity,  mutual  understanding,  and  no  mistake.1   Mutual  consent  must 
always  exist  at  the  moment  when  the  contract  is  made.     An  express  refusal 
to  abide  by  an  award,  made  at  different  times  by  the  parties  thereto  and 
without  any  meeting  of  their  minds,  is  not  a  contract  that  will  operate  as  a 
discharge  of  the  award.2 

89.  Mutual  Consent  Must  be  Shown  by  Some  Overt  Act.*— It  is  impossible 
to  enter  into  a  person's  thoughts  or  ascertain  how  fully  he  comprehends  what 
he  is  doing  or  what  he  intends  to  do,  and  mutual  assent  is  not  therefore  in 
general  capable  of  direct  proof;  but  proof  of  acts  performed  that  indicate  a 
purpose  or  intention  on  the  part  of  the  contractor  is  sufficient  proof  of 
consent  on  his  part  to  the  terms  of  his  agreement.     As  Professor  Langdell 
has  said  in  his  Summary:3  "  Mental  acts  are  not  the  materials  out  of  which 
promises  are  made;  a  physical  act  on  the  part  of  the  promisor  is  indispen- 
sable, and  when  the  physical  act  has  been  done  only  a  physical  act  can  undo 
it."     If  one  party  has  made  an  offer  which  has  been  duly  accepted  by  the 
other,  or  if  one  has  made  a  delivery  and  the  other  appropriated  the  thing 
delivered,  proof  of  these  facts  is  sufficient  proof  of  the  mutual  consent  of 
the  parties.     If  such  acts  cannot  be  proved,  then  the  contract  fails,  for  what- 
ever may  have  been  in  the  minds  of  the  parties,  or  however  mutual  their 
unexpressed  wishes  may  have  been,  they  will  not  suffice  to  create  a  contract 
unless  manifested  by  some  overt  act.     The  mental  state  in  itself  signifies 
nothing;  it  requires  manifestation. 

If,  on  the  other  hand,  it  can  be  conclusively  proven  that  mutual  consent 
is  lacking,  the  performance  of  the  acts  will  amount  to  nothing  toward  es- 

1  Gill  Manfg.  Co.  v.  Hurd,  18  Fed.  Rep.  2  Hynesa.  Wright,  62  Conn.  323  ;  but  see 

673  [1883]  ;  Pullman  Palace  Car  Co.  u.  Tex.  Sheffield  Fur.  Co.  u.  Hull  Coal  &  Coke  Co. 

&  Pac.  R.  Co  ,   11  Fed.  Rep.  625  [1882];  (Ala  ),  14  So.  Rep.  672. 

Greve  v.  Ganger,  36  Wis.  369  ;  Shields  ®.  3  Langdell's  Summary  of  Law  of  Con- 

Hickey,  26  Mo.  App.  194  [1887].  tracts  1090. 

*  See  Sec.  183,  infra. 

79 


80          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  90. 

tablishing  a  contract.  Au  offer  must  be  a  physical  and  mental  act  com- 
bined, the  mental  act  being  embodied  in,  represented  by,  and  inseparable 
from  the  physical  act.  If  the  mental  act  becomes  impossible,  then  the  offer 
comes  to  an  end,  as  in  death  or  insanity,  either  of  which  during  the  pen- 
dency of  an  offer  makes  the  contract  impossible  for  want  of  mutuality.1 

As  an  instance,  suppose  an  engineer  draws  up  two  contracts  for  the 
approval  of  his  company,  both  of  which  are  signed  and  sealed,  and  the  com- 
pany elects  to  deliver  one  of  the  instruments,  but  by  mistake  delivers  the 
other  instead,  then  there  is  no  contract.2  There  must  be  a  definite  under- 
standing between  the  parties  as  to  all  the  elements  of  the  contract.3 

90.  There  Should  be  No  Misunderstanding.— A  material  error  as  to  the 
kind,  quantity,  quality  (?),  or  price  of  the  subject-matter  may  make  the 
-agreement  void,  either  because  there  was  never  any  real  consent  of  the  par- 
ties or  because  the  things  or  state  of  things  to  which  they  consented  does 
not  exist  or  cannot  be  realized.4  Therefore  it  was  held  no  contract  when  a 
telegraph-operator  by  mistake  made  an  order  for  three  rifles  to  read  as  an 
order  for  fifty  rifles.6 

A  mistake  as  to  the  person  with  whom  the  contract  is  made  has  been 
held  to  invalidate  it  where  it  was  shown  that  the  contracted  never  intended 
to  contract  with  the  person  who  assumed  to  be  the  contractor.6  A  mistake 
as  to  which  of  two  things  was  the  subject  of  the  sale  will  render  the  obliga- 
tion not  binding.  Thus  in  the  description  of  an  estate  sold,  if  the  descrip- 
tion include  a  piece  of  land  not  intended  to  be  included  in  the  sale,  then 
there  is  no  mutual  understanding,  and  therefore  no  contract.7  Another 
instance  is  afforded  where  materials  were  bought  to  arrive  by  a  certain  ship 
Peerless,  which  the  contractor  supposed  to  be  a  vessel  that  sailed  from  a 
distant  port  in  October;  but  there  were  two  ships  named  the  Peerless,  the 
one  meant  by  the  seller  sailing  in  December,  and  it  was  held  that  there  was 
no  binding  contract,  because  there  was  a  mistake  as  to  the  subject  of  the 
proposed  sale.8 

A  contract  will  not  be  enforced  when  it  appears  to  have  been  based  on 
the  supposed  existence  of  a  certain  fact  which  furnished  the  motive  for 

1Langdell's  Summary  of  Contracts.  1091.  K  E.  Rep.  10. 

2  A  contract  is  completed  by  delivery.  4  Pollock  on  Contracts  433;  Hopkins  v. 

There  was  no  contract  as  to  the  one  deliv-  Hiukley,  61  Md.  584  ;  Rogers  v.  Walsh,  12 

«red,  for  there  was  no  consent ;  not  as  to  Neb.  28 ;  Gibsons.  Pelhie,  37  Mich.  380; 

the  other  contract,  because  there  was  no  Lamar  Milling  &  Elevator  Co.  v.  Craddock 

delivery  to  evidence  the  assent.    Langdell's  (Colo.  App.),  37  Pac.  Rep.  950. 

Summary  170.    [It  might  be  a  very  difficult  6  Henkle  v.  Pape,  L.  R.  6  Ex.  7. 

matter  of  proof,  however. — ED.]       -  6Boulton  v.  Jones,  2  H.  &  N.  564;  Bos- 

A  contract  signed  by  both  parties  and  ton  Ice  Co.  v.  Potter,  123  Mass.  28;  but  see 

left  with  the  engineer  or  architect  for  their  Benjamin  on  Sales  372. 

joint  benefit  has  been  held  a  good  delivery.  7  Calverly  v.  Williams,  1  Vesey  Jr  210; 

Coey  V.  Lehman.  79  111.  177  ;  Blanchard  v.  Pollock  on  Contracts  430,  431,  and  cases 

Blackstone,  102  Mass.  343.  cited. 

8Hubbard  v.  Thompson,  25  Fed.  Rep.  8  Raffles  «.  Wichelhaus,  Langdell's   Se- 

188  [1885]  ;    Sibley  v.  Felton  (Mass.),  31  lect  Cases  on  Contracts  39. 


§90.]  LAW  OF  CONTEACT8.  81 

entering  into  the  agreement  if  it  subsequently  transpires  that  the  assump- 
tion on  which  the  contract  was  based  was  erroneous.1 

An  agreement  by  the  owner  of  a  patent  for  certain  machines  to  furnish 
to  another  "such  a  number  of  machines  as  he  desires  for  his  own  use  at 
present  or  hereafter"  was  held  void  for  want  of  mutuality.8 

An  error  as  to  quality  will  not  suffice  to  make  a  transaction  void  unless  it 
is  such  that,  according  to  the  ordinary  course  of  dealing  and  use  of  language, 
the  difference  made  by  the  absence  of  quality  wrongly  supposed  to  exist 
amounts  to  a  difference  of  kind,  and  furthermore  the  mistake  must  be  com- 
mon to  both  parties,3  or  it  may  be  a  mistake  on  one  side  and  fraud  on  the 
other.  As  Mr.  Dickson  says  in  his  notes  to  Pollock  on  Contracts:  "The 
law  tolerates  a  good  deal  of  lying  in  trade  when  it  is  merely  in  the  nature 
of  puffing  one's  own  goods  or  deprecating  those  of  another,  provided  the 
thing  bargained  for  reveals  its  own  qualities  and  is  open  to  the  parties' 
equal  inspection/' 4 

It  has  been  held  that  executed  contracts  are  obligatory  without  regard 
to  mutuality.5  The  fact  that  it  is  left  optional  with  one  party  whether  he 
will  enforce  his  rights  under  the  contract  is  not  a  ground  for  a  defense  of 
want  of  mutuality  by  a  party  who  has  received  the  benefit; 6  but  an  agree- 
ment which  is  void  as  against  public  policy  does  not  give  one  party  the  right 
to  sue  for  damages  for  failure  of  the  other  party  to  perform  his  part,  though 
the  first  party  has  performed  his  part.7 

If  a  misunderstanding  as  to  the  price  to  be  paid  be  proven  no  obligation 
will  be  created.  Thus  when  a  watchman  was  employed  at  one  dollar  and 
a  half  per  day,  and  nights  the  same,  and  the  employer  understood  him  to 
say  and  mean  one  dollar  and  one-half  for  every  twenty-four  hours,  while 
the  watchman  meant  that  amount  for  a  day  of  twelve  hours,  it  was  held 
that  there  was  no  contract,  because  the  parties  had  never  assented  to  the 
same  thing;  that  the  watchman  had  never  consented  to  work  for  one  dollar 
and  a  half  per  twenty-four  hours  nor  the  employer  to  pay  three  dollars,  but 
that,  the  watchman  having  performed  the  services,  he  was  entitled  to  recover 
what  they  were  reasonably  worth.8 

In  another  case  where  shingles  were  bought  at  a  price  agreed  upon,  but 
there  was  a  dispute  as  to  whether  the  shingles  were  by  the  "bunch"  or  by 
the  thousand,  it  was  held  that  unless  both  parties  had  understandingly 

1  United  States  v.  Charles  (C.  C.  A.),  74          5  Grove  «.  Hodges,  5  P.  F.  Smith  504. 
Fed.  Rep.  142.  •  Waterman  v.  Waterman,  27  Fed.  Rep. 

2  Columbia  Wire  Co.  v.  Freeman  Wire      827. 

Co.  (C.  C.),  71  Fed.  Rep.  302.  7  Kouutz  «.  Flannagen  (Sup.),  19  K  Y. 

3  Pollock  on   Contracts  436;    American      Supp.  33. 

cases  cited  in  the  Blackstone  edition  [1888].  8  Turner  v.  Webster,  24  Kan.  38  [1880]; 

4  Poland  v.   Brownell,    131   Ma^s.    138;  Tucker  «.  Preston  (Vt.),  11  Atl.  Rep.  726 
Armstrongs.  Huffstutler,  19  Ala  51;  Hill  [1888];  Vogel  v.  Pekoe  (111.  Sup.),  42  N. 
0.  Bush,  19  Ark.  522;  Bell  v.  Henderson,  E.  Rep.  386. 

6  How.  (Miss.)  321. 


82          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  91. 

agreed  to  one  of  these  views  as  to  quantity,  then  there  was  no  special  con- 
tract  as  to  price.1  There  is  no  contract  unless  the  parties  thereto  assent,, 
and  they  must  assent  to  the  same  thing  in  the  same  sense.2  * 

An  interesting  case  is  reported  in  Maine,  where  a  contractor  proposed 
to  erect  a  schoolhouse  for  $4550,  as  per  plans  and  specifications,  and,  being 
the  lowest  bidder,  the  committee  awarded  the  contract  to  him  for  $4525 
and  made  it  a  matter  of  record,  and  required  a  bond  for  that  amount  for  the 
completion  of  the  work,  also  forfeiture  for  delays,  etc.  During  construction 
trouble  arose  as  to  the  erection  of  the  building,  and  the  court  held  that 
there  had  been  no  contract  between  the  parties.3 

In  order  to  have  a  contract,  the  minds  of  the  parties  must  meet  and  all 
the  terms  of  the  contract  must  be  agreed  to.  If  any  part  of  the  contract 
is  not  settled  by  the  parties,  or  a  mode  agreed  upon  to  settle  it,  there  can 
be  no  contract  as  to  that  part.4 

A  memorandum  reciting  that  a  company  has  engaged  an  employee  "  for 
the  season  1890-1891  at  a  salary  of  $75  per  week,  subject  to  the  regulations 
and  conditions  of  a  contract  to  be  substituted  for  the  memorandum,"  is  not 
a  contract.  There  is  no  meeting  of  the  minds  of  the  parties  as  to  the  con- 
ditions, restrictions,  and  regulations  mentioned.5 

91.  To  Avoid  a  Contract  Mistake  or  Misunderstanding  Must  be  Shown 
Conclusively. — It  may  seem  to  the  reader  that  such  rules  of  law  would 
enable  any  man  to  escape  the  obligation  he  has  assumed,  but  it  is  thought 
not.  The  misunderstanding,  as  to  the  parties,  thing,  quantity,  or  price 
of  the  property,  material,  or  goods  sold  or  contracted  for,  must  be  of  such  a 
nature  as  a  reasonably  diligent  man  might  fall  into  in  order  to  relieve. him 
from  the  performance  of  his  contract,  and  that  he  did  misunderstand  and 
that  there  was  no  mutual  consent  he  must  satisfy  twelve  jurymen.6 

If  a  proposal  was  misunderstood  by  an  acceptor  it  is  for  him  to  show 
that  the  misunderstanding  was  reasonable.  A  contractor  cannot  be  allowed 
to  evade  the  performance  of  his  contract  by  the  simple  statement  that  he- 
has  made  a  mistake  or  did  not  understand.  If  the  owner  or  contractor  at 
the  time  he  executes  the  contract  conducts  himself  so  as  to  lead  a  reason- 
able man  to  believe  that  he  understands  and  assents  to  its  terms,  and  the 
contractor  or  owner  executes  and  performs  his  part  under  that  belief, 

1  Greene  v.  Bateman,  2  Woodb.  &  M.  Verzan  v.  McGregor,  23  Cal.  339,  where 

239.  the  contractor  made  a  mistake  in  estimat- 

2 1  Parsons  on    Contracts  389;   and  see  ing  amount  and  difficulty  of  work. 

Flaherty  v.    Miner,    123    N.   Y.    382,    in  4  Gill   Manfg.    Co.   «."Hurd   (Ohio),  18 

which  case  it  was  claimed  that  the  clause  Fed.   Rep.   673   [1883];   see  Lyndon  Mill 

for  architect's  certificate  was  inserted  by  Co.  v.  Lyndon  Lit.  Inst.,  63  Vt.  581,  where 

mistake.     A  strong  architectural  case.     It  the  owner  supposed  the  contractor  was 

is  submitted  that  this  question  of  quantity  furnishing  the  materials  as  a  gratuity, 

might  frequently  be  determined  by  the  5  Walton  v.  Mather  (City  Ct.),  24  N.  Y. 

custom  or  usage  of  the  place.  Supp.  307 

3  Howard  v.  School,  78  Me.  230;  and  see  6'Pollock  on  Contracts  432. 
Hughes  v.   Clyde,  41  Ohio   St.  339;   also 


§  92.]  LAW  OF  CONTRACTS.  83 

neither  party  can  assert  that  he  did  not  understand  or  assent  to  its  terms.1 
Where  the  written  draft  of  a  contract  is  viewed  as  the  consummation  of  the- 
negotiations  there  is  no  contract  until  it  is  finally  signed,2  The  burden  of 
proof  is  on  one  affirming  the  completion  of  the  contract  before  the  written 
draft  thereof  was  signed  to  show  that  the  signing  was  not  necessary  to  its. 
completion.3  A  statement  by  plaintiff  in  his  answer  accepting  the  rate,  and 
saying  that  he  would  be  down  the  first  of  the  week  and  make  out  a  con- 
tract, does  not  prove  that  he  did  not  suppose  that  his  letter  perfected  the- 
contract.4 

A  demand  for  a  sleeping-car  berth  and  a  promise  to  furnish  it  constitute 
a  contract,  the  mutual  obligations  and  promises  being  a  valid  considera- 
tion.5 The  same  is  true  of  a  verbal  application  for  cars  of  a  railroad  agent, 
who  replies  "All  right"  and  makes  an  order  for  the  cars.  Such  facts 
proven  are  sufficient  to  show  that  the  minds  of  the  parties  met  and  that  a 
contract  was  made.* 

The  mistake  in  executing  a  contract  need  not  always  be  mutual  in  order 
to  invalidate  it.7 

If  there  is  a  mutual  mistake  as  to  the  existence  of  the  subject-matter^ 
as  in  the  sale  of  a  farm  and  buildings  the  latter  of  which  were  burnt,  the- 
vendor  cannot  recover  the  contract  price.8 

92.  Manner  of  Coming  to  an  Understanding — Offer  and  Acceptance  Make 
a  Contract. — The  manner  and  method  of  parties  reaching  this  mutual 
understanding  are  essentially  various,  but  probably  the  most  common  way 
of  evidencing  a  mutual  consent  to  the  terms  of  an  agreement  is  by  offer 
and  acceptance;  by  one  party  making  a  statement  of  the  terms  by  which 
he  will  abide  in  the  shape  of  an  offer,  and  then,  while  he  is  in  that  state  of 
mind,  i.  e.,  before  he  has  expressed  himself  to  the  contrary  or  made  a  revo- 
cation of  his  offer,  the  other  party  accepting  his  offer  unconditionally,  in  the 
same  terms  as  made.  Then  is  there  a  meeting  of  the  minds,  and  from  the 
moment  of  that  acceptance  there  is  a  binding  contract.  Such  an  agree- 
ment is  usually  introduced  by  some  questions  as  to  whether  a  thing  is  for 
sale  or  to  be  performed;  or  the  disposition  to  contract  may  be  evidenced  by 
a  notice  or  advertisement  that  a  certain  sale  is  to  take  place  or  a  thing  is  to- 
be  disposed  of  or  that  certain  work  is  to  be  performed,  inviting  offers,  pro- 
Phillip  v.  Gallant,  62  1ST.  Y.  256.  6  Pittsburgh,  etc.,  Ry.  Co.  «.  Racer 
2  Steamship  Co.  ®.  Swift,  29  Atl.  Rep.  (Ind.),  38  N.  E.  Rep.  186. 
1063,  86  Me.  248;  but  see  Sanders  v.  Potts-  1  Foster  0.  Mackinnon,  L.  R.  4  C.  P. 
litzer  Bro*.  F.  Co.  (N.  Y.  App.),  39  N.  E.  704,  711;  Pitcher  v.  Henuessy,  48  N.  Y. 
Rep.  75.  415. 

8  Mississippi  &  Dominion  Steamship  Co.          8  Wells  v.  Caiman,  107  Mass.  514  [1871]r 
v  Swift,  86  Me.  248.  cases  cited.     But  see  Harvard   Law   Pro- 

4  Lawrence  v.  Milwaukee,  L.  S.  &  W.  R.       fessor's  doctrine  in  Harvard  Law  Review,. 
Co.  (Wis.),  54  N.  W.  Rep.  797.     £06  Sec.      and  an  article  on  the  effect,  of  destruction 
797.  of  buildings  on  contract  for  sale   of   ti  e 

5  Pullman  P.  C.  Co.  v.  Booth  (Tex.),  28      property,  12  Central  Law  Journal  77,  by 
S.  W.  Hep.  719.  E.  A.  Marshall. 


84          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  93. 

posals,  or  tenders.  This  preliminary  is  then  followed  by  a  certain  amount 
of  fencing  and  bantering  as  to  who  shall  first  commit  himself  to  the  terms 
of  an  agreement.  If  it  is  a  horse  to  sell,  the  seller  will  want  the  purchaser 
to  make  him  an  offer.  He  wants  the  highest  price  he  can  get  for  his  horse, 
and  if  he  makes  an  offer  it  may  be  accepted,  which  completes  the  contract, 
and  he  may  have  named  a  figure  lower  than  he  could  have  obtained  had  he 
been  a  little  more  prudent.  If  the  seller  gets  the  buyer  to  make  him  an 
offer,  it  is  then  in  his  hands  to  close  the  bargain  and  make  it  a  sale  or  to 
reject  it.  If  the  offer  be  accepted  before  the  buyer  revokes  his  offer,  then 
the  contract  is  completed,  and  the  would-be  purchaser  is  bound  by  the 
agreement. 

This  desire  to  be  noncommittal,  or  to  keep  the  privilege  of  closing  the 
contract,  has  given  rise  to  auction  sales  and  of  letting  work  by  advertising 
for  bids,  proposals,  or  tenders,  by  which  means  the  owner  or  proprietor 
retains  the  right  to  determine  the  contract,  and  contracts  are  entered  into 
in  a  manner  more  dignified  and  businesslike  than  those  attending  every-day 
bargaining. 

The  subject  of  offer  and  acceptance  presents  many  nice  questions  as  to 
what  is  an  offer,  what  constitutes  an  acceptance,  at  what  moment  the 
acceptance  takes  effect  and  the  offer  becomes  irrevocable,  and  what  effects 
a  revocation  of  an  offer. 

93.  What  Is  an  Offer  ? — An  offer  is  a  proposal  to  make  a  promise,  and 
in  law  it  is  not  an  offer  until  it  comes  to  the  knowledge  of  the  person  to 
whom  it  is  made.  The  offer  must  be  made  in  the  form  of  a  proposal  to 
become  binding  upon  acceptance.  An  offer  in  the  form  of  a  question,  as, 
"  Will  you  or  would  you  take  or  accept  $10  a  thousand  ?"  is  not  an  offer  at 
all.  The  offer  must  be  in  such  terms  that  if  accepted  both  parties  shall  be 
bound,  that  the  obligations  may  be  mutual.  Had  the  would-be  purchaser 
said,  "  I  will  give  you  $10  a  thousand,"  and  the  seller  signified  his  assent 
by  accepting  the  offer  or  by  delivering  the  materials,  that  would  have  made 
a  valid  contract. 

An  offer  has  been  called  a  conditional  promise  which  may  be  revoked 
at  any  time  before  it  is  accepted.  It  is  not  a  promise,  for  it  is  revocable, 
while  a  promise  is  not;  but  if  it  is  accepted  in  due  course  of  time,  i.e., 
within  a  reasonable  time,  and  in  the  precise  terms  that  it  was  made,  it  then 
becomes  a  promise,  and  the  offer  and  acceptance  becomes  a  promise  for  a 
promise,  which  constitutes  a  contract. 

In  bilateral  contracts  where  the  offer  and  consideration  are  mutual 
promises,  the  offer  becomes  a  promise  only  upon  the  acceptance  and  per- 
formance of  the  consideration,  i.  e.,  the  giving  of  a  promise  in  return  for  the 
promise  offered.  It  therefore  follows  in  a  bilateral  contract  that  if  one 
party  is  bound  both  are  bound,  and  both  must  have  become  bound  at  the 
same  time.  In  a  unilateral  contract  where  the  offer  is  made  in  considera- 
tion of  an  act  or  material  thing,  the  offer  becomes  a  promise  "  in  consequence 


§  94.]  LAW  OF  CONTRACTS.  85 

of  what  the  contractor  does  or  gives  or  suffers,"  while  in  a  bilateral  contract 
the  offer  becomes  a  binding  promise  "  in  consequence  of  what  the  contractor 
says,"  promises.  Therefore  the  acceptance  in  a  bilateral  contract  must 
amount  to  a  promise  or  the  adoption  of  the  terms  imposed  in  the  offer  as 
the  consideration  for  the  obligation  assumed  by  the  offerer.  The  adoption 
of  the  terms  and  the  promise  by  the  contractor  and  the  continuance  of  the 
offer  and  the  counterpromise  by  the  one  making  the  offer  are  implied  by 
the  law.  The  law  implies  the  making  of  the  counter  offer  in  the  terms  of 
the  original  offer  when  the  acceptance  is  made,  and  also  imposes  upon  the 
offerer  the  presumption  that  he  has  remained  in  that  state  of  mind  so  long 
as  his  offer  continues,  and  that  he  will  accept  the  counter  offer  in  the  same 
terms  of  his  own  offer. 

In  treating  the  subject  of  offer  and  acceptance  it  seems  essential  to  dis- 
tinguish between  these  two  classes  of  contracts:  those  that  are  one-sided — 
unilateral,  and  those  in  which  both  sides  are  bound  to  perform,  or  bilateral 
contracts. 

94.  What  Constitutes  an  Acceptance? — The  acceptance  differs  from  the 
making  of  an  offer  in  that  it  is  not  always  necessary  to  communicate  it  to 
the  person  making  the  offer.  The  acceptance  of  an  offer  may  be  expressed 
by  words  or  signs,  as  by  the  acts  of  the  parties;  for  example,  the  delivery 
of  the  materials  or  goods,  or  by  accepting  and  using  them,  or  by  any  overt 
act  that  indicates  in  the  ordinary  course  of  trade  or  business  an  acceptance 
of  the  terms  offered.  For  all  practical  purposes  it  may  be  said  that  the 
offer  is  accepted  when  the  person  to  whom  the  offer  has  been  made  has. 
performed  the  conditions,  i.  e.,  the  consideration  stipulated  in  the  offer.. 
The  entering  of  an  order  on  the  books  of  a  firm  may  constitute  the  accept- 
ance and  create  a  contract.1 

In  a  public  offer  of  a  reward  for  the  apprehension  and  conviction  of  the  • 
perpetrators  of  an  act,  the  offer  is  accepted  by  the  discovery  and  arrest  of 
the  culprit,  unless,  indeed,  the  act  was  done  in  ignorance  of  the  reward' 
having  been  offered.     If  such  is  the  case  it  is  no  contract,  because  the  offer - 
had  never  been  communicated  to  the  apprehender.     If  an  offer  be  made  im 
consideration  of  the  performance  of  certain  acts  the  offer  does  not  become' 
a  promise  until  the  performance  of  the  consideration  is  completed,  and  up 
to  that  moment  the  offer  may  be  revoked  or  destroyed  by  the  death  of  the 
one  making  the  offer,  and  the  offeree  (contractor)  be  deprived  of  any  pay 
for  what  he  had  done.     Thus  an  offer  in  the  terms,  "  If  you  build  me  a 
house  according  to  these  plans  and  specifications,  on  its  completion  I  will 
pay  you  $10,000,"  would,  it  seems,  allow  the  owner  to  back  out  and  revoke 
his  offer  at  any  time  before  the  house  was  finished,  and  leave  the  contractor 
without  any  remedy  for  his  work  and  materials  under  the  terms  of  their 

1  Camden  Iron  Wks.  t>.  Fox  (N.  J.  C.  C.),  34  Fed.  Rep.  200  [1887]. 


86          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  95. 

would-be  agreement.1  This  might  cause  great  hardship  and  gross  injustice 
on  the  contractor;  but  if  it  were  held  that  the  offer  became  a  promise  when 
the  contractor  began  the  performance  of  the  consideration,  it  would  be  con- 
trary to  the  manifest  intention  of  the  parties  as  shown  by  the  terms  of  their 
agreement;  and  it  would  impose  hardships  upon  the  offerer  (owner)  when 
the  contractor,  as  he  might  at  any  stage  of  the  work,  refuse  to  proceed 
further  in  performing  the  consideration  of  the  offer.  If  the  contractor 
should  die,  the  offerer  (owner)  would  then  be  without  remedy.  These 
troubles  and  hardships  may  be  averted  by  making  a  binding  contract  before 
the  work  or  performance  begins,  by  giving  an  offer  of  a  promise  to  pay,  for 
a  promise  to  perform,  i.  e.,  by  an  exchange  of  mutual  promises.  If  the 
parties  neglect  this  precaution,  any  hardships  they  may  suffer  should  be 
charged  to  themselves. 

95.  Contracts  Made  by  Mail  or  Telegraph.— It  is  the  acceptance  of  an 
•offer  that  completes  a  simple  contract,  and  it  is  the  delivery  of  the  instru- 
ment that  makes  a  deed.  The  offer  is  supposed  to  continue  till  the  time  of 
its  acceptance,  for  the  offer  and  acceptance  must  exist  at  the  same  time,  the 
moment  when  the  contract  is  created.  Thus  when  an  offer  is  made  by 
letter  or  by  telegram,  the  offer  is  continued  during  the  time  that  the  letter 
or  message  is  travelling,  unless  it  is  recalled  or  revoked,  which  revocation 
must  be  communicated  to  the  person  to  whom  the  offer  was  made  or  sent. 

It  is  frequently  and  popularly  stated  that  the  mailing  of  a  letter  of 
acceptance  completes  the  contract,  and  it  is  frequently  held  by  courts  that 
an  offer  is  accepted  from  the  time  the  answer  is  deposited  in  the  post-office." 
Tt  has  been  held  too  that  a  telegraph  message  containing  an  acceptance  of 
an  offer  delivered  on  Saturday  to  the  telegraph  company,  and  required 
to  be  delivered  on  Sunday  to  the  offerer,  is  wholly  completed  on  Saturday, 
and  not  void  because  of  Sunday  laws.8  It  is  pretty  well  settled  in  this 
country  and  in  England  that  a  contract  is  completed  at  the  moment  the 
letter  of  acceptance  is  mailed,  or  the  message  of  acceptance  delivered  to  the 
telegraph  company.4 

1  In  such  cases  the  law  implies  a  con-  864-6.  The  work  must  have  been  per- 
tract  on  the  part  of  the  owner  to  pay  the  formed  with  the  owner's  knowledge,  con- 
reasonable  value  of  the  contractor's  ser-  sent,  privity,  or  by  his  request.  It  must 
vices  and  materials.  If  the  owner  request  not  have  been  done  officiously,  or  no  re- 
ft contractor  or  mechanic  to  perform  cer-  covery  can  be  had,  however  meritorious 
tain  work  or  to  furnish  materials,  or  if,  or  beneficial  it  may  be  to  the  owner, 
without  any  request,  the  owner  stands  by  2  Hunt  v.  Highman  (la.),  30  N.  W.  Rep. 
#nd  allows  the  contractor  to  do  work  or  769  [1886]. 

furnish  materials,    acting  in  good  faith,  3  Western  Union  Telegraph  Co.  v.  Way 

and  the  owner  takes    possession  of  the  (Ala.),  4  So.  Rep.  844  [1887]. 

materials  and  work  and  enjoys  the  benefit  4  Trevor  v.  Wood  (N.  Y.),  16  Am.  Law 

thereof,  the  law  will  imply  a  contract  on  Reg.  215  [1868];  Terrier  ®.  Storer,  19  N. 

his  part  to  pay  for  such  work  and  ma-  W.  Rep.  288  [1884];    Adams  v.  Lindsey, 

terials.     Thomas  v.    Walnut   Land,   etc.,  1  B.  &  A.  681  [1818];  Dunlop  v.  Higgins, 

Co.,  43  Mo.  App.  653;  Henderson  B'dge.  1   H.  of  L.  Cas.  381    [1848];  Thomson  v. 

•Co.  «.  McGrath,  134  U.  S.  260;  Richard  v.  James,  Langdell's  Cases  on  Contracts  125; 

:Stanton,  16  Wend.  (N.  Y.)  25;  numerous  Langdell's  Summary  of  Contracts  993. 
.cases  cited,  29  Amer.  &  Eng.  Eucy.  Law 


§  96.]  LAW  OF  CONTRACTS.  87 

The  soundnes-s  of  this  rule  has  been  questioned  by  good  authority,  who 
argue  that  the  acceptance  must  be  communicated  to  the  original  offerer  to 
-complete  the  contract,  and  this  seems  to  be  the  Massachusetts  rule.1  The 
latter  rule  seems  to  be  sustained  by  the  decisions  to  the  effect  that  if  a  letter 
or  message  of  revocation  is  received  by  the  offerer  before  or  at  the  same 
time  he  receives  the  letter  of  acceptance  the  revocation  will  render  the 
acceptance  inoperative,  even  though  the  letter  was  mailed  before  the  revo- 
cation was  sent.  If  the  letter  of  acceptance  be  followed  by  another  letter, 
not  revoking  but  modifying  the  acceptance,  and  the  two  are  delivered  at 
the  same  moment,  the  later  letter  will  take  effect,  no  matter  which  letter 
happens  to  be  opened  first.2  The  cases  cited  would  seem  to  hold  that  a 
contract  is  not  consummated  at  the  moment  the  letter  or  message  of  accept- 
ance is  sent  if  the  contractor  can  get  his  revocation  to  the  offerer  before  or 
by  the  time  the  acceptance  is  delivered. 

Proof  that  a  letter  was  duly  stamped  and  addressed  and  mailed  is  prima 
facie  evidence  that  the  person  to  whom  it  was  sent  received  it 3  if  it  appears 
that  he  then  resided  in  the  town  to  which  the  letter  was  addressed,4  and  the 
delivery  of  a  letter  to  a  mail-carrier  is  equivalent  to  depositing  it  in  the  post- 
office.5 

96.  Acceptance  Must  be  Unconditional  and  in  the  Same  Terms  as  the 
Offer. — The  acceptance  must  be  absolute,  positive,  and  unconditional.  An 
offer  can  be  accepted  only  in  the  terms  in  which  it  is  made,  and  if  the 
acceptance  modifies  the  offer  in  any  particular  it  is  not  an  acceptance  that 
will  create  a  contract,  but  is  a  counter-offer.  Therefore  where  a  quantity 
of  tin  was  offered  at  a  certain  price,  and  the  reply  was :  "  We  accept  your 
offer  if  full-weight  plates,"  it  was  held  that  the  acceptance  was  conditional 
and  did  not  constitute  a  contract.6  A  letter  reading,  "  I  am  prepared  to 
make  the  arrangements  with  you  on  the  terms  you  name,"  in  answer  to  a 
letter  of  proposal,  does  not  constitute  an  unconditional  acceptance.7 

If  the  terms  of  the  offer  are  not  restated  in  the  acceptance,  the  parties 
will  be  bound  by  the  terms  of  the  offer.  Thus  where  a  railroad  offered  to 
carry  logs  at  a  certain  rate,  the  shipper  to  chain  the  logs  if  necessary  for 
safety,  which  rate  was  accepted,  it  was  held  that  by  accepting  the  rate 
without  qualification  the  shipper  accepted  all  the  conditions  specified  by  the 
railroad  company.8 

An  offer  must  be  accepted  just  as  it  was  made,  and  without  modification 
or  qualification.  A  qualified  acceptance  of  an  offer,  i.  e.,  an  acceptance  in 
terms  that  differ  from  those  in  which  the  offer  was  made,  becomes  a  new 

1  Langdell's  Summary  of  Contracts  993.  6  Pearce  v.  Langfitt,  101  Pa.  507  [1883]. 

2  Langdell's  Summary  of  Contracts  996.  "Kirwin  v.  Byrne  (Com.  PI.),  29  N.  Y. 

3  McFarland  v.  U.  S.  Mut.  Accdt.  Assn.  Supp.  287;  27  N.  Y.  Supp.  143,  affirmed. 
(Mo.  Sup.),  27  S.  W.  Rep.  436;  Young  v.          7  Havens  0.  American  Fire  Ins.  Co.  (Ind. 
Clapp  (111.  Sup.),  35  N.  E.  Rep.  372.  App.),  39  N.  E.  Rep.  40. 

4  Goodwin  v.  Provident  Sav.  Life  Assur.          8  Lawrence  v.   Milwaukee,  etc.,  R.  Co* 
Soc.  (Iowa),  66  N.  W.  Rep.  157.  (Wis.),  54  N.  W.  Rep.  797. 


88          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  97 

offer,  which  the  original  offerer  may  accept  and  thus  complete  the  contract. 
The  acceptance  must  conform  to  the  conditions  expressed  or  implied  in  the 
offer  in  respect  to  time,  place,  manner,  and  method  in  which  it  is  given 
or  made. 

The  acceptance  must  be  made  or  mailed  within  the  time  named  in  the 
offer,  and  if  no  time  be  named,  within  a  reasonable  time,  which  latter  will 
depend  upon  the  circumstances  and  is  a  question  of  fact  for  the  jury.1 
If  the  offer  requires  the  acceptance  to  be  sent  to  a  particular  place,  a  letter 
of  acceptance  sent  to  another  place  will  not  create  a  contract.2  An  offer 
containing  a  request  to  answer  by  telegraph  "yes  "  or  "  no,"  and  stating  that 
unless  the  answer  is  received  by  a  certain  day  "  shall  conclude  no,"  the 
acceptance  must  be  received  by  telegram  on  or  before  the  date  named.3 

If  the  offer  is  neither  accepted  nor  rejected,  but  a  new  offer  made  in 
turn,  it  amounts  to  a  constructive  rejection  of  the  original  offer.4  If  the 
first  offer  is  afterwards  accepted,  it  does  not  create  a  contract,  but  is  only  a 
new  counter-offer  which  may  be  accepted  or  rejected  by  the  original  offerer/ 

97.  What  Effects  a  Revocation  of  an  Offer. — An  offer  must  be  communi- 
cated to  the  offeree,  and  it  can  be  revoked  only  in  the  same  manner.  It 
may  be  withdrawn  at  any  time  before  it  is  accepted,  but  the  withdrawal 
must  be  brought  to  the  knowledge  of  the  party  to  whom  it  was  made.6 

It  is  not  to  be  supposed  that  the  offeree  can  leave  town  or  secrete 
himself  and  thus  avoid  a  revocation  of  an  offer,  for  a  letter  withdrawing  the 
offer,  properly  directed,  with  a  return  notice  thereon,  and  mailed  in  time  ta 
reach  the  person  to  whom  the  offer  was  made  before  his  letter  of  acceptance 
was  mailed,  will  be  held  to  have  been  received  in  the  absence  of  strong  proof 
to  the  contrary.7 

In  the  case  of  an  offer  the  offerer  holds  control  of  it  and  may  call  it  back 
or  revoke  it,  but  once  accepted  the  promise  is  made  and  the  offerer  has  parted 
with  his  control  of  the  offer  and  it  is  irrevocable.  It  can  then  be  rescinded 
only  by  the  mutual  consent  and  agreement  of  both  parties,  i.  e.,  by  another 
contract  that  they  will  not  enforce  their  rights.8 

A  mere  change  of  mind  on  the  part  of  the  offerer  will  not  destroy  an 
offer.  It  requires  some  physical  act  on  his  part  to  undo  the  making  of  the 
offer,  and  the  physical  act  must  be  brought  to  the  knowledge  of  the  person  to- 
whom  the  offer  was  made.*  An  offer  to  sell*  materials  is  not  revoked  by  sell- 

1  Furrier  v.  Storer,  19    N.  W.  Rep.  288  condiiions    silence  or  a  failure  to  reply 
[1884].  will  amount  to  an  acceptance  of  an  offer, 

2  Eliason  v.  Henshaw,  4  Curtis  382  [1819].  see  27  Am.   Law.  Reg.   N.  S.  260  [1888]; 

3  Lewis    v.    Browning,    130    Mass.    173  Tyler  v.  Tuatlin  Acad.  etc.,  26  Am.  Law. 
[1881];  Home  v.  Niver  (Mass.),  46  N.  E.  Reg.  339  [1887]. 

Rep.  393.  6  Lanedell's  Summary  1090;  Sherwin  v. 

4  Hyde  v.  Wrench,  3  Beavan  334.  Nat.  C.  K.  Co.  (Colo.  App.),  38  Pac.  Rep. 
*  Sheffield  C.  Co.  ®.  Sheffield  &  R.  Ry.       392. 

Co.,  3   Ry.  &  C.    Cas.  121;  W.  &  H.  M.          'Sherwin  v.  Nat.  C.  R.  Co.,  supra. 
Goulding  v.   Hammond  (C.  C.  App.),  54         8  Fosters.  Dabber,  6  Ex.  Ch.  851;  Mora- 
Fed.  Rep.  639.     When  and  under  what      wetz  on  Corporations,  §  871. 
*  See  Mutuality,  Sec.  89,  supra. 


§  97.]  LAW  OF  CONTRACTS.  .  89 

ing  them  to  some  one  else. l  The  offer  continues  and  may  be  accepted  at  any 
time  before  it  is  revoked  and  its  revocation  is  brought  to  the  knowledge  of 
the  offeree.  The  offeree  and  the  purchaser  of  the  materials  cannot  both 
acquire  title  to  the  materials,  but  as  against  the  seller  they  can  both 
acquire  the  right  to  the  goods,  together  with  the  alternative  right  to  dam- 
ages, which  is  all  that  a  contract  secures  to  the  contractor  in  any  case.2  In 
the  case  of  a  specific  chattel  where  the  title  passes  immediately  upon  the 
acceptance  of  the  offer  doubtless  the  person  who  first  completes  his  contract 
with  the  seller  will  get  title  to  the  goods,  and  may  retain  possession  of 
them;  but  when  the  offer  is  to  sell  real  property  or  unspecified  personal 
property  it  may  be  doubted  whether  a  subsequent  sale  of  the  property,, 
whether  executed  or  executory,  would  have  any  effect  upon  the  contract 
created  by  accepting  the  offer." 

It  is  often  held  that  a  definite  proposal  to  do  work  according  to  plans 
and  specifications  plus  an  unqualified  acceptance  by  a  city  together  consti- 
tute a  contract,  and  the  plans  and  specifications  become  a  part  of  it.8  But 
there  are  other  decisions  to  the  effect  that  the  acceptance  of  a  legally  made 
bid  for  a  proposed  building  does  not  in  itself  constitute  a  contract,  but  that 
the  bidder  is  entitled  to  a  contract  in  accordance  with  the  terms  of  his 
proposal.4  * 

The  distinction  is  a  nice  one,  to  say  the  least,  and  it  is  doubtful  if  it  is 
worth  making,  as  the  contractor's  rights  and  claims  are  substantially  the 
same  in  either  case.  If  no  new  terms  are  contemplated  and  the  acceptance 
is  unqualified,  there  is  no  doubt  a  binding  contract.  If  from  the  circum- 
stances there  is  an  evident  intention  to  enter  into  an  agreement,  and  the 
preparation  of  the  written  contract  was  postponed  as  a  matter  of  conven- 
ience and  for  the  purpose  of  expressing  in  more  formal  language  the  agree- 
ment already  arrived  at,  the  contract  will  be  considered  as  completed  when 
accepted,  and  must  be  performed  according  to  the  terms  of  the  proposal.5  An 
intimation  in  the  written  acceptance  of  a  proposal  that  a  contract  will  be 
afterwards  prepared,  does  not  prevent  the  contract  from  taking  effect. 

Care  should  be  taken  not  to  accept  bids  absolutely,  but  only  on  condition 
that  the  builder  sign  the  contract  and  specifications  in  their  prescribed 
forms,  finding  securities  and  executing  the  required  bonds,  etc.  If  the 
acceptance  be  made  "  subject  to  the  execution  of  a  contract  to  be  pre- 
pared," or  "  subject  to  the  preparation  and  approval  of  a  formal  contract," ' 
or  "  subject  to  the  conditions  and  regulations  of  a  contract  to  be  substituted 
for  this  memorandum,"  the  contract  will  not  take  effect  until  it  has  been 

1  Query:  if  the  offeree  had  been  apprised  800  [1888]. 

of  the  sale  by  the  purchaser  would  it  re-  "Hughes  v.  Clyde,  41  Ohio  St  339. 

voko  the  offer.  5  Lewis  «.  Brass,  L.  R.  3  Q.  B.  D.  667; 

vLangdeH's  Summary  of  Contracts  1091.  Lawrence  v.  M.  L.  S.  &  W.  R.  Co.,  54  N. 

3Denton   v.   City  of  A.,     34  Kan.   438  W.  Rep.  797. 

[1885];  Wiles  «.  Hoss  (Ind.),  16  N.  E.  Rep.  •  Winn  v.  Bull,  L.  R.  7  Ch.  Div.  29. 

*  See  Lowest  Bidder,  Sees.  182-3,  infra. 


90          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  97. 

formally  executed.1  In  each  case  the  evident  intention  of  the  parties  will 
hold  in  determining  whether  the  contract  was  completed,  or  whether  it  was 
intended  to  complete  it  on  some  later  occasion. 

An  offer  which  is  to  continue  or  remain  open  for  a  time  named  is  only 
an  expression  of  the  intention  of  the  parties,  and  fixes  the  length  of  time  it 
shall  continue,  provided  it  be  not  revoked  in  the  meantime.  To  make  such 
a  stipulation  binding  it  must  be  supported  by  a  consideration  or  be  expressed 
in  a  sealed  instrument.  Even  then  the  offer  may  be  revoked,  which  act  on 
the  part  of  the  offerer  would  give  to  the  other  party  a  right  to  damages  for 
the  breach  of  his  contract  to  keep  the  offer  open.  A  court  would  not  enforce 
the  execution  or  completion  of  the  contract.2 

If  a  dealer  agrees  with  a  contractor  in  consideration  of  $1  that  the 
contractor  shall  have  the  refusal  of  certain  materials  for  one  month  for 
$5000,  the  law  supposes  the  dealer  to  offer  the  materials  to  the  contractor 
for  $5000  and  to  stipulate  that  the  offer  shall  continue  for  one  month.  If 
the  contractor  revoke  the  offer,  then  he  becomes  liable  for  the  damages  the 
contractor  suffers  in  consequence,  which  would  probably  be  the  difference 
between  the  price  agreed  upon  and  the  price  at  which  the  contractor  ceuld 
have  bought.3  *  •  »  - 

1  Walter  v.  Walther  (City  Ct.),  24  N.  Y.  2  Langdell's  Summary  of  Contracts,  1089. 
Supp.  307;  but  see  Emdem's  Law  of  Build-  3  Langdell's  Summary  of  Contracts,  1090. 
ing  58. 

*See  Lowest  Bidder,  Sees.  132-199,  especially  Sec.  184,  infra. 


CHAPTER  V. 

LAW  OF  CONTRACTS.    GENERAL  STATUTES  LIMITING  THE  LAW 

OF  CONTRACTS. 

STATUTE   OF   FBAUDS. 

98.  Proof  of  Terms  of  Contracts. — From  what  has  preceded  the  reader  has 
no  doubt  often  wondered  how  certain  things  were  to  be  proved.     The  exist- 
ence of  certain  facts  and  the  proof  of  them  are  two  quite  different  things. 
The  facts  attending  every  contract  must  be  viewed  in  the  light  shed  by  the 
evidence   offered  as  seen   by  the  jury.     The  facts  ascertained,  it  is   the 
province  of  the  court  to  determine  what  laws  are  applicable  and  what  rights 
belong  to  the  parties.     The  most  inexperienced  will  appreciate  how  difficult 
it  must  be  to  prove  the  terms  of  contracts  by  the  parol  evidence  of  the 
parties  or  by  that  of  witnesses.     The  fallibility  of  men's  memories  and  the 
frequent  change  of  residence  increase  the  difficulties  as  the  time  increases. 

To  prevent  frauds  arid  perjuries  statute  laws  have  been  passed  which 
require  that  important  contracts  be  attended  by  certain  ceremonies  and 
overt  acts  by  which  they  may  be  proved  in  courts,  and  on  account  of  the 
loss  of  evidence  after  the  lapse  of  time  statutes  have  been  passed  limiting 
the  liability  of  parties  to  certain  periods  or  lengths  of  time.  That  the  public 
may  have  notice  of  certain  contracts  and  obligations,  especially  those  per- 
taining to  transfers  of  land  and  to  important  construction  work  some  states 
require  that  they  shall  be  made  the  subject  of  public  record.  In  some 
states  it  is  required  that  all  contracts  and  specifications  for  construction  of 
buildings  and  works  shall  be  recorded  with  the  registry  clerk  of  the  district. 

99.  Statute  of  Frauds.  —In  nearly  all  the  states,  in  Canada,  and  England 
there  are  statutes  requiring  certain  contracts  to  be  in  writing  which  are 
known  as  the  Statute  of  Frauds.     The  statute  arose  from  the  necessity  of 
having  contracts  in  writing  to  prevent  frauds  and  perjuries  in  proving  the 
the  contract  ;  hence  its  name.    These  statutes  usually  provide  that  contracts 
in  which  the  consideration  is  more  than  £10  (or  $40  or  $50)  cannot   be 
enforced  in  courts  of  law  if  they  are  not  in  writing,  or  there  has  not  been 
a  part  payment  or  a  part  delivery;  and  contracts  for  an  interest  inlands, 
or  that  cannot  be  performed  within  one  year,  or  to  pay  the  debt  of  another, 
are  voidable  if  not  in  writing.     The  reasons  and  circumstances  requiring . 
the  passage  of  such  a  statute  law  exist  in  construction  contracts,  and  every 
prudent  man  will  require  a  written  contract  for  construction  work. 

When  the  statute  provides  that  certain  contracts  should  be  in  writing,  it 

91 


92          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  100. 

is  imperative  that  they  should  be  so  made.  If  such  a  contract  is  not  in 
writing  it  can  furnish  no  ground  of  action  or  basis  of  defense  to  either  party, 
but  they  must  stand  as  though  no  express  contract  had  been  made.  The 
person  rendering  services  may  usually  recover  upon  a  quantum  meruit?  but 
not  upon  the  express  contract.2  If  a  contract  is  required  to  be  in  writing, 
all  material  variations  of  such  contract  must  be  in  writing.3 

The  general  requirements  of  the  different  statutes  are  the  same  for  the 
different  states,  but  there  are  slight  differences  which  it  is  impossible  to 
treat  here.  The  advice  of  a  local  attorney  should  be  sought  for  the  inter- 
pretation and  application  of  the  statute  of  the  different  states,  however, 
some  general  statements  may  be  made  and  cases  be  given  which  will  illustrate 
the  working  of  the  statutes. 

100.  Statute  of  Frauds.— Contracts  for  the  Sale   of  Goods,  Materials, 
and  Merchandise. — The  statute  as  enacted  in  nearly  all  the  states  of  the 
Union  has  a  section  very  similar  to  the  following  •,     "  No  contract  for  the 
sale  of  goods,  wares,  and  merchandise  for  the  price  of  [$30  in  New  Jersey 
to  $300  in  Utah]  or  more,   shall  be  good  or  valid  unless  the  purchaser 
accepts  and  receives  part  of  the  goods  so  sold  or  gives  something  in  earnest 
to  bind  the  bargain  or  in  part  payment  ;  or  unless  some  note  or  memo- 
randum in  writing  of  the  bargain  is  made  and  signed  by  the  party  to  be 
charged  thereby,  or  by  some  person  thereunto  by  him  lawfully  authorized." 

This  section  of  the  statute  has  been  held  to  govern  all  forms  of  selling 
goods,  as  at  auction,  and  to  extend  to  every  manner  of  private  sale.4  It 
applies  to  contracts  for  exchange,  barter,  and  to  executory  as  well  as  exe- 
cuted sales  ; 5  but  a  contract  to  give  a  chattel  mortgage  or  a  contract  to 
become  a  partner  in  the  sale  has  been  held  not  within  the  statute.6 

101.  Contract  for  Goods  to  be  Manufactured.— If  the  subject-matter  of 
goods  contracted  for  or  sold  has  no   existence  and  is  to  be  manufactured, 
then  the  law  varies  in  different  states.      Some  hold  that  such  a  contract  is 
within  the  statute,  and  other   states  hold  it  is  merely  a  contract  for  work 
and  labor.    The  latter  doctrine  is  often  called  the  New  York  rule  ;  but  there 
is  a  tendency  to  get  away  from  it,  even  in  the  State  of  New  York.     If  a 
contract  be  for  the  sale  of  an  article  which  requires  the  personal  skill  or 
attention  of  «he  seller,  it  is  a  contract  for  work  and  labor  ;  the  test  fre- 
quently applied  being  whether  the  seller  is   himself  to  manufacture  them 
or  to  procure  some  particular  person,  or  whether  a  delivery  of  goods  by  any 
one  will  satisfy  the  contract,     If  the  latter,  then  it  is  a  contract  for  the  sale  of 
goods.     Other  cases  make  the  test  one  of  design  and  purpose,  holding  that 
if  the  article  manufactured  is  to  be  of  special  or  peculiar  design  and  not 

1  Salb  v.  Campbell  fWis.),  27  N.  W.  Rep.  3  Malone  v.  Philadelphia,  147  Pa.  St.  416. 
45  •  Cohen  v.  Stene  (Wis.),  21  N.  W.  Rep.  4  Davis  v.  Robertson,  1  Mill.  71 ;  Davis 
514.  v.  Rowell,  2  Pick.  64. 

2  LnrPiam  v.  Osborae  (Nev.),  18  Pac.  Rep.  6  8  Amer.  &  Eng.  Eucy.  Law  704. 
88*1  [1888].  6  8  Amer.  &  Eng.  Ency.  Law  705, 


[§  102.  LAW  OF  CONTRACTS.  93 

suitable  for  general  trade,  then  it  is  not  within  the  statute.1  Therefore  a 
contract  to  furnish  a  monument  for  a  certain  amount,  to  be  erected  by  a 
state  on  a  battlefield,  was  held  not  a  contract  for  sale  of  goods,  within  the 
statute  of  frauds,  though  the  contractors  were  not  bound  to  bestow  their 
personal  skill  and  labor  thereon.2  An  agreement  to  take  down  a  building 
and  reerect  it  on  another  lot  was  held  not  a  sale  of  goods,  but  an  agreement 
for  labor  and  to  improve  real  estate.3  A  verbal  contract  to  furnish  ma- 
terial, and,  after  performing  labor  thereon,  to  attach  it  to  the  realty,  as  a 
part  of  a  building  in  the  course  of  construction,  is  not  a  sale  of  goods  or 
chattels,  and  is  not  within  the  statute.4  * 

There  is  a  safe  road  to  travel  in  all  such  cases,  and  that  is  the  surest 
though  it  be  the  longest.  Adopt  a  steadfast  rule  of  committing  the  terms 
of  every  contract  to  paper,  and  avoid  the  question  and  litigation  consequent 
to  a  failure  to  adhere  to  the  rule.  The  object  of  this  book  is  not  to 
get  its  readers  out  of  trouble,  but  if  possible  to  teach  them  to  avoid  trouble 
and  litigation. 

In  the  United  States  the  statute  is  held  to  apply  not  only  to  personal 
chattels  arid  ordinary  goods,  wares,  merchandise,  and  materials,  but  also  to 
stocks  of  corporations,  bank  and  promissory  notes,  book  accounts,  and  bond- 
scrip,  but  not,  it  seems,  to  an  interest  in  a  patent  right.5 

The  burden  of  proving  that  the  price  exceeds  the  sum  named  in  the 
statute  rests  upon  the  party  setting  up  the  statute  in  his  defense,  and 
where  many  articles  or  different  materials  are  bought  at  the  same  trans- 
action the  aggregate  price  of  the  whole  is  the  price  to  be  considered.6 

102.  What  is  a  Sufficient  Memorandum  of  a  Sale. — The  note  or  memo- 
randum need  not  be  an  agreement  or  contract,  but  it  must  contain  the 
essential  terms  of  the  coritract.  It  must  show  who  are  the  parties,  what 
was  the  subject-matter  of  the  contract,  the  quantity,  price,  and  any  special 
terms  agreed  upon.  The  memoranda  may  be  contained  in  several  papers, 
as  in  the  ordinary  exchange  of  letters  in  correspondence.  A  written  offer 
or  proposal  is  sufficient  if  accepted.  A  bill  of  parcels,  a  receipt  for  money, 
a  vote  of  a  private  or  municipal  corporation  duly  entered  on  its  books,7  or  a 
series  of  letters  or  of  telegrams  put  together,  may  make  the  necessary 
memorandum.  Where  connection  is  to  be  established  between  separate 
papers  they  must  contain  references  to  one  another  or  be  physically  joined 
together.  Parol  evidence  should  not  be  necessary  to  establish  their  connec- 

1  Brown  &  H.  Co.  v.  Wimder  (Minn.),  67  Ency.  Law  860 ;  Lee  0.  Griffin,  1  B.  &  S. 
N.  W.  Rep.  357.  272  ;  Clay  v.  Yates,  1  H.  &  N.  73. 

2  Forsyth  v.  Mann  (Vt.)    34   All.    Rep.  5  Grigsby  v.  Fomhs  (Ky.),  21  S.  W.  Rep. 
481.  37;  8  Amer.  &  Eng.  Ency.  Law  710. 

3 Scales  v.  Wiley  (Vt.),  33  Atl.  Rep.  771.         •  8  Amer.  &  Eng.  Eucy.  Law  710. 
4  Brown  &  H.  «.  Wunder  (Minn  ),  67  N.         7  8  Amer.  &  Eng.  Ency.  Law  712;  Cam- 
W.  Rep.  357 ;  and  cases  in  29  Amer.  &  Eng.     den  I.  Wks.    v.   Fox,  34  Fed.    Rep.    200 

[1887]. 

*  See  Sec.  106,  infra. 


94          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§103. 

tion  with  the  contract.  If  all  the  papers  be  signed  they  need  not  refer  to 
one  another,  but  all  must  refer  to  the  contract.  Parol  evidence  may  be 
introduced  to  identify  the  papers,  but  not  to  connect  them. 

The  memorandum  may  be  printed,  made  in  pencil  or  stamped;  it  need 
not  be  delivered  to  the  opposite  party,  nor  need  it  be  published.  It  is 
sufficient  that  a  written  memorandum  was  made  and  signed  by  the  party 
to  be  charged.  If  lost  its  contents  may  be  proved  like  those  of  any 
writing.1 

103.  Contracts  to  be  Performed  within  One  Year.— The  statute  usually 
provides  that  no  action  shall  be  brought  upon  any  agreement  made,  which 
by  its  terms  is  not  to  be  or  cannot  be  performed  within  one  year  from  the 
date  of  the  making  thereof  unless  the  agreement,  or  some  sufficient  memo- 
randum of  it,  be  in  writing  and  duly  signed. 

In  construing  this  act  the  courts  have  held  that  if  the  contract  can  by 
any  possibility  be  performed  or  completed  within  a  year  according  to  the 
intent  of  the  parties,  then  it  is  not  within  the  statute  and  is  not  required 
to  be  in  writing.  The  mere  expectation  or  supposition  of  the  parties  as  to 
when  the  contract  will  be  completed  does  not  determine  the  intent.  How- 
ever unlikely  or  impossible  it  may  appear  that  the  contract  will  not  be  per- 
formed, if  it  be  possible  to  perform  it  (not  terminate  it),  it  is  not  within  the 
statute.  When  the  performance  within  a  year  is  impossible  it  must  be  in 
writing  or  there  must  be  a  written  memorandum.3  Agreements  to  do  an 
act  more  than  a  year  hence;  to  continue  to  do  an  act  or  service  or  to  refrain 
from  doing  it  for  a  greater  period  than  one  year;  to  take  a  lease  for  more 
than  one  year  or  for  a  year,  the  same  to  begin  at  some  future  day;  to  serve 
or  employ  for  more  than  a  year  or  for  a  year,  the  service  to  begin  at  some 
later  day;  and  all  contracts  in  which  it  is  evident  that  they  cannot  be  per- 
formed according  to  the  express  intent  of  the  parties  within  a  year,  are 
within  the  statute.  An  oral  agreement  to  make  annual  payments  in  a  con- 
tract which  by  its  terms  is  to  continue  sixteen  years  is  within  the  statute, 
and  cannot  be  enforced;3  but  it  might  be  otherwise  if  the  contract  were 
completely  performed  by  the  debtor.4 

The  following  instances  will  serve  to  show  what  agreements  are  not 
within  the  statute,  and,  if  not  subject  to  the  restriction  of  other  sections  of 
the  statute,  need  not  be  in  writing  :  A  verbal  contract  to  construct  a  road 
or  house  within  a  year  and  twenty  days  from  the  date  thereof  was  held  valid, 
as  it  might  be  completed  within  the  year.5  The  same  ha«  ^een  held  of  an 
agreement  dated  June  5,  1883,  for  the  erection  of  a  structure  to  be  put  up 

1  8  Amer.  &  Eng.  Ency.  Law  710-728.          (Dak.),  37  N.  W.  Rep.    749   [1888],   and 

2  Warren  Co.   v.   Halbrook,  118  N.  Y.      note. 

586,  16  Amer.  Repts.    788;    Lockwood  v.  3  Jackson  Iron  Co.  v.  Negaunee  C.  Co. 

Barnes,  3   Hill  128;  Jilson  v.  Gilbert,  26  (C.  C.  A.),  65  Fed.  Rep.  298. 

Wis.  637;  Doyle  v.  Dixon,  97  Mass.  208,  4  Weatherford,    etc.,    R.    Co.    v.    "Wood 

93  Amer.  Dec.  80,  and  note;  8  Amer.  &  (Tex.),  29  S.  W.  Rep.  411. 

Eng.  Ency.  Law  686  ;   Sarles  v.  Shadow  b  Jones  v.  Pouch,  41  Ohio  St.  146  [1884]  ; 


§105.]  LAW  OF  CONTRACTS.  95 

part  during  the  season  of  1883  and  part  during  the  season  of  1884; l  and  of 
an  agreement  to  work  a  quarry  and  to  divide  the  profits,  no  time  being 
specified.2 

If  the  promise  depend  upon  the  happening  of  an  event  which  may 
not  happen  within  a  long  time,  but  which  has  happened  within  a  year, 
the  agreement  is  good  and  will  sustain  an  action.3  A  verbal  contract  to- 
deliver  ties,  timber,  etc.,  on  the  line  of  a  railroad,  to  be  inspected  once  a 
month,  and,  if  received,  to  be  paid  for  at  current  prices,  the  contract  ta 
continue  until  the  contractor  is  notified  to  stop,  is  not  within  the  statute;  * 
and  so  also  of  an  agreement  to  continue  to  supply  materials  as  long  as 
wanted.6  An  oral  agreement  between  a  father  and  a  son  by  which  the  son 
is  to  support  his  parents  during  their  lives  is  not  within  the  statute,  as  it 
may  be  performed  within  a  year; 8  but  a  verbal  agreement  whereby  a  rail- 
road company  undertakes  to  lay  a  switch  for  the  use  of  a  sawmill-owner* 
and  to  maintain  it  as  long  as  he  should  need  it,  was  held  within  the  stat- 
ute when  it  was  expected  and  understood  that  he  would  need  it  for  many 
years.7 

When  it  is  expressly  agreed  that  a  contract  is  to  be  performed  within 
one  year,  extension  from  the  date  of  completion  from  time  to  time  by  parol 
for  periods  less  than  one  year  will  not  be  effected  by  the  statute  of  frauds.* 
104.  Contracts  Executed  or  Completed  by  Contractor. — If  the  contract 
is  executed  by  one  party  it  does  not  come  within  the  statute  of  frauds. 
Therefore  a  contract  to  build  a  house  for  $2400;— $500  when  the  house  is 
begun,  $500  when  the  house  is  finished,  and  the  residue  in  five  yearly  pay- 
ments, with  interest  payable  semi-annually,  was  held  not  within  the  statute, 
the  contract  having  being  wholly  performed  by  the  contractor  within  a  year. 
The  contract  had  been  reduced  to  writing,  but  never  signed.9  While  this, 
case  may  represent  the  general  law,  there  are  many  cases  to  the  contrary  in 
Massachusetts,10  New  York,  Vermont,  and  other  states.  If,  however,  the 
contract  has  been  fully  performed  and  accepted  by  one  party  to  the  enrich- 
ment of  the  other  party,  such  cases  may  be  supported  on  the  ground  that  a 
contract  is  implied  by  law  to  pay  for  the  same,  and  the  contract  is  good 
evidence  of  the  value  of  the  performance  or  work  done. 
.  105.  Contracts  for  Employment  Not  to  be  Completed  within  a  Year.— 
Instances  within  the  statute  which  are  most  likely  to  occur  in  the  experi- 

Plimpton®.  Curtis,  15  Wend.  (N.  Y.)  336;  Rep.  241  [1888]  ;  8  Amer.  &  Eng.  Eucy. 

Fain  v.   Turner's  Adm'r  (Ky.),  29  S.  W.  Law  691. 

Rep.  628.  7  Warner  v.  Texas  &  P.  Ry.  Co.,  17  Sup. 

1  Sarles  v.  Sharlow  (Dak),  37  N.  W.  Rep.  Ct.  Rep.  147. 

749  [1888].  8  Donovan    v.    Richmond    (Mich.),     2S 

2  Treat  v.  Hiles  (Wis.),  32  N".  W.  Rep.  N.  W.  Rep.  516;  8  Amer.  &  Eng.  Ency. 
517  Law  688. 

3  8  Amer.  &  Eng.  Ency.  Law  690.  9  Durfee  v.  O'Brien,    14  Atl.   Rep.    857 

4  Walker  v.  Railroad  Co.  (S,  C.),  1  S.  E.  [1888] :    Haines  v.   Thompson,    19  N.  Y. 
Rep.  366  [18871.  Stip.  184. 

6  Walker  «.  Johnson,  96  U.  S.  424.  10  See  8  Amer.  &  Eng.  Ency.  Law  692. 

'Carr  v.  McCarthy  (Mich.),  38  N.  W. 


96          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  105. 

«nce  of  every  engineer  or  architect  are  verbal  contracts  for  employment  by 
the  year,  which  are  usually  made  some  time  before  the  service  begins.  Such 
a  contract,  unless  in  writing,  will  not  hold,  and  the  employee  may  get 
his  discharge  any  day  and  find  himself  without  redress,1  If  the  con- 
tract of  employment  as  set  forth  in  his  written  memorandum  is  incom- 
plete, then  the  contract  may  fail.  If,  however,  the  service  be  by  the 
year  and  has  continued  for  one  year,  and  as  to  the  next  year  nothing 
has  been  said,  a  new  implied  contract  may  arise  at  the  end  of  the  first 
year's  service,  which  the  law  will  enforce  though  not  in  writing.  The 
new  contract  implied  by  the  law  is  a  hiring  from  year  to  year,  per- 
formed within  a  year,  and  therefore  good.3  A  verbal  agreement  for  a 
future  term  to  begin  at  once  and  not  exceeding  one  year  is  not  within 
the  statute.8 

A  contract  for  one  year,  to  commence  when  the  employee  secures  release 
from  present  employment,  was  held  not  within  the  statute,  when  it  was 
possible  to  secure  the  release  on  the  date  of  contract,  though  in  fact  the 
release  was  not  secured  till  later.4  A  verbal  contract  for  steady  and  per- 
manent employment  is  not  void  or  within  the  statute,  as  it  may  be  at  an  end 
any  time  upon  the  death  of  the  employee.5  If  the  contract  by  its  terms  con- 
tains an  option  allowing  either  party  to  terminate  it  within  a  year,  it  is  not 
within  the  statute  and  need  not  be  in  writing.6*  If  no  definite  time  be 
agreed  upon  as  to  when  the  service  shall  terminate  or  how  long  it  shall 
continue,  it  need  not  be  in  writing,  but  it  were  better  to  be  in  writing 
always.7 

Contracts  not  to  be  performed  within  a  year  must  be  signed  by  both 
parties.  If  not  signed,8  part  performance  will  not  take  it  out  of  the  opera- 
tion of  the  statute  in  an  action  at  law,9  although  it  has  been  held  a  ground 
for  relief  in  equity.10 

1  Milan  v.  Rio  Grande,  etc.,  R.  (Tex.),  Ry.  Co.,  1  Mo.  App.  135,  "at  a  monthly 
37  S.  W.  Rep.  165;  Moody  v.  Jones  (Tex.),  salary,  so  long  as  he  shall  do  the  work  as- 
37  S.  W.  Rep.  379.  signed  him"  Carter  W.  Ld.   Co.  v.  Kin- 

2  Smes  v.  Supt.  (Mich.),  25  N.  W.  Rep.  liu  (Neb.),  66  N.  W.  Rep.  536,  "so  long  as 
485;   Cullis   v.  Bothhamley,    7  W.  R.  87;  the  works  are  kept  running  " 

Lelande  v.  Aldrich  (La.),  6  So.  Rep.  28,  6  Blake  «.  Voi^ht  (N.  Y.  A1  p.),  31  N. 

8  Amer.  &  Eug.  Ency.  Law  687,  14  Amer.  E.  Rep.  256  [1892];  but  see  contra  Doyle  v. 

<&Eng.  Ency.  Law  765;  Ball  «.  Stover,  31  Dixon,  97  Mass.  208;  and  see  Dobson  v: 

N.  Y.    Supp.    781;  Herman   <x  Littlefield  Collis,  1  H.  &  N.  81;  and  8  Amer.  &  Eug. 

<Cal.),  42  Pac.  Rep.  443.  Ency.  Law  692. 

3  8  Amer.  &  Eng.  Ency.  Law  687;  Whit-  '  Jagan  v.   Goetz  (Com.  PL),  32  N.  Y. 
ing  v.  Ohlert  (Mich.),  18  K  W.  Rep.  219;  Supp.  144;  Smalley  v.  Mitchell  (Mich.),  68 
Raynor  v.  Drew  (Cal.),  13  Pac.  Rep.  866  N.  W.  Rep.  978. 

and  note;  Ward  «.  Mathews  (Cal.),  14  Pac.  8  Wilkinson  v.   Heavenrich  (Mich.),  26 

Rep.  604;  Sharkey  «.  McDermoth  (Mo.),  4  N.  W.  Rep.  139. 

S.   W.  Rep.  107;  Franklin   Sugar  Co.  «.  9  Wolke  v.  Fleming  find.),  2  N.  E.  Rep. 

Taylor  (Kans.),  15  Pac.  Rep.  586  [1888].  325;  Henry  v.  Wells  (Ark.),  3  S.  W.  Rep. 

4  Baltimore  B.  Co.  v.  Callahan  (Md.),  33  637. 

Atl.  Rep.  460.  ">  Warner  v.  Texas  &  P.  Ry.  (C.  C.  A.), 

5  Penn.  Co.  v.  Dolan  (Ind.  App.),  32  N.       54  Fed.  Rep.  922. 
E.  Rep.  802;  Harrington  v.  Kansas  C.  C. 

*8ee  also  Sec.  201,  infra. 


§106.  LAW  OF  CONTRACTS.  97 

106.  Contracts  for  an  Interest  in  Lands. — The  statutes  usually  require 
that  any  contract  for  the  sale  or  transfer  of  lands,  tenements,  or  heredita- 
ments, or  any  interest  in  or  concerning  them,  shall  be  in  writing,  or  that  a 
sufficient  memorandum  shall  be  made  in  writing. 

This  section  has  been  held  to  apply  to  private  sales,  auction  sales  by 
administrators,  executors,  trustees,  commissioners,  and  public  officers, 
except  judicial  sales,  and  to  exchanges  of  land.  The  statute  applies  to 
every  agreement  in  regard  to  the  title  of  lands,  for  the  sale  of  equitable 
title  as  well  as  the  legal  title,  and  in  short  to  every  agreement  by  which  an 
interest  in  land  is  modified,  increased,  or  diminished,  even  to  agreements 
for  the  possession  of  lands ; l  to  agreements  in  regard  to  the  use  of  a  party 
wall ;  *  for  the  sale  of  bricks  of  a  ruined  house  still  standing  on  the  land,3  or 
to  prepare  the  plans  of  a  building  and  to  superintend  the  construction 
thereof,  in  consideration  of  the  conveyance  of  a  certain  lot.4 

Whether  a  sale  of  growing  timber  or  crops  is  an  interest  in  lands  is  held 
differently  in  different  states.  It  is  usually  determined  by  the  evident 
intention  of  the  parties,  if  that  can  be  gathered  from  the  evidence,  whether 
the  sale  is  a  sale  of  chattels  made  by  cutting  the  growing  timber  or  crops, 
or  whether  the  buyer  is  to  derive  any  benefit  from  the  lands.  In  some 
states  it  must  be  in  writing  if  it  is  a  natural  growth,  i.  e.,  not  requiring 
cultivation  as  timber;  while  if  it  is  for  a  crop  that  has  been  planted  and 
cultivated  like  growing  grain,  potatoes,  and  root  crops,  then  an  oral  con- 
tract will  suffice.5  A  good  general  rule  is  that  the  agreement  does  not  fall 
within  the  statute  unless  some  interest  in  lands  in  the  nature  of  a  title, 
enforceable  either  in  a  court  of  law  or  equity,  is  sought  to  be  obtained, 
created,  or  transferred  to  the  party  furnishing  the  consideration.6  There- 
fore improvements  upon  lands,  distinct  from  the  title  or  possession,  are  not 
such  an  interest  in  the  land  as  to  bring  agreements  therefor  within  the 
statute.  A  parol  promise  to  pay  for  work  or  labor  upon  land,  whether 
already  done  or  to  be  done,  has  never  been  held  to  be  within  the  statute.7 
An  agreement  to  pay  one-half  the  cost  of  a  party  wall  located  half  on 
the  land  of  two  coterminous  owners  was  held  not  within  the  statute  of 
frauds.8 

Agreements  relating  solely  to  the  use  to  be  made  of  lands  are  valid  if 
not  in  writing.  Such  is  an  agreement  not  to  use  a  building  for  a  certain 
purpose,  to  keep  up  a  fence,  to  remove  a  fence,  or  to  use  lands  for  the 
manufacture  of  bricks  from  clay  found  in  it,  the  title  of  the  property  in  the 
clay  and  wood  to  remain  in  the  owner  until  paid  for.  An  agreement  not  to 

1  8  Amer.  &  Eng.  Ency.  Law  694-7.  6  8  Amer.  &  Eng.  Ency.  Law  701. 

2  Rice  v.  Roberts,  24  Wis.  461.  7  Many  cases  cited  in  29  Amer.  &  Encr. 

3  Meyers  v.  Schemp,  67  111.  469;  but  see  Ency.  Law  860;  Scales  0.  Wiley  (Vt.),  33 
contra  8  Amer.  &  Eng.  Ency.  Law  698.  Atl.  Rep.  771. 

4  Koch  «.  Williams   (Wis.),  52  K  W.  8  Stuht  «.  Sweezy  (Neb.),  67  N.  W.  Rep. 
Rep.  257.  748. 

5  8  Amer.  &  Eng.  Eucy.  Law  698-700. 


98          ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  107. 

build  within  a  certain  number  of  feet  from  the  street  and  an  agreement  to 
open  a  street  have  both  been  held  to  be  within  the  statute; l  but  parol  agree- 
ments between  coterminous  owners  of  lands  fixing  their  boundaries,  fol- 
lowed by  possession,  is  valid  and  binding,9  and  an  agreement  to  remove  a 
fence  has  been  held  not  within  the  statute.3  There  are,  however,  decisions 
holding  such  oral  agreements  void.4  Usually  the  cases  hold  that  the  parties 
must  occupy  to  the  boundary  for  the  full  statutory  period,  which  bars  an 
action  at  law,  though  there  are  cases  to  the  effect  that  possession  for  a 
shorter  time  will  fix  the  boundary. 5 

The  right  to  possession  of  land  is  such  an  interest  in  land  as  to  require 
an  agreement  to  deliver  possession  to  be  in  writing.6 

107.  Special  Agreements    Relating  to   Lands.— Agreements   releasing 
pecuniary  claims  for  damages  to  lands  where  they  have  been  flowed  by  a 
mill-pond,7  or  have  been  taken  for  public  purposes,  need  not  be  in  writing, 
for  they  are  held  not  within  the  statute.8 

Agreements  to  refund  or  discount  the  price  if  the  quantity  of  land  falls 
short  have  been  held  valid  if  not  in  writing,  but  an  agreement  to  pay  an 
additional  sum  if  coal  was  found  has  been  held  within  the  statute.8 

Where  land  has  been  conveyed  an  oral  promise  to  pay  therefor  at  a 
certain  rate  is  not  within  the  statute  of  frauds,  and  the  stipulated  amount 
may  be  recovered  in  an  action  at  law.9 

108.  Contract  Implied  by   Law  to    Pay  for   Benefits   Conferred   when 
there  has  been  Enrichment. — Under  any  of  the   provisions  of  the  statute, 
if  a  contractor  has,  in  reliance  upon  an  oral  agreement  and  in  accordance 
with  its  terms,  made  improvements  which  are  a  benefit  to  the  other  party 
estate,  he  may  recover  their  value   if  the  other  party  refuse  to  perform  his 
part  of  the  agreement.     The  recovery  is  not   upon  the  oral  agreement,  but 
upon  the  contract  implied  by  law  and  imposed  upon  the  owner  by  law  that 
he  shall  not  enrich  himself  at  the  expense  of  one  whom  he  has  victimized. 
An  attempt  to  make  an  oral  contract  between  the  parties,  or  the  existence 
of  such  an  undertaking,  does  not  prevent  the  law  from  imposing  a  contract 
upon  the  party  who  has  profited  by  his  own  wrong.10     The  owner  must  have 
been  enriched,  for  if  the  contract  was  entirely  for  the  benefit  of  the  con- 
tractor he  cannot  recover,  and  the  profits  he  has  received  may  be  deducted 
from  the  value  of  the  improvements.11 

1  8  Amer.  &  Eng.  Ency.  Law  703.  Smith  9.  Goulding,  6  Gush.  (Muss.)  154. 

2  Archer  v.  Helin  (Miss.)-  11  So.  Rep.  3.  8  8  Amer.  &  Eng.  Ency.  Law  704. 

3  Storms  v.  Snyder.  10  Johns.  109;  and  9  Freed  9.  Richy  (Pa.).  8  All.  Rep.  626; 
see  44  Wis  96,  60  Wis.  310,  500.  Kickland  v.  Mensha  W.  W.  Co.  (Wfe.),  31 

4  White    9.    Hopeman,   43    Mich.    267;  N.  W.  Rep.  471;  Huff  r.  Hall  (Mich.),  23 
Hagey  v.  Detweiler,  35  Pa.  St.  409.  N.  W   Rep.  88:  Camp  v.  Moreman  (Ky.), 

5  See  Adverse  Possession,  1  Amer.  &  Eng.  2  S.  W.  Rep.  179;  Railroad  Co.  9.  English, 
Encv.  Law  249-250.  16  Pac.  Rep.  82  [18871. 

•Boyd   9.    Paul   (Mo.),   28  S.  W.  Rep.  108Amer.  &  Eng.  Ency.  Law  661. 

171.  "  8  Amer.  &  Eng.  Ency,  Law  662. 

7  Clement  9.  Durgin,  5  Greel.  (Me.)  14; 
*8ee  Sec.  53,  supra. 


§  110.]  LAW  OF  CONTRACTS.  99 

109.  Contracts  for  the  Creation,  Assignment,  and  Surrender  of  Estates  in 
Land. — By  the  statute  of  frauds  all  estates  created  or  transferred  must  be  in 
writing,  and  usually  the  law  also  requires  that  they  shall  be  sealed  and  wit- 
nessed, and  that   they  shall  also  be  acknowledged  and  made  of  public 
record.     Usually  estates  less  than  a  freehold  are  not  required  to  be  acknowl- 
edged nor  registered,  but  it  is  good  practice  nevertheless  to  have  both  cere- 
monies carried  out,   except  perhaps   in  case  of  short  leases.     All   such 
instruments  should  be  signed  by  both  parties.     Bids  at  auction  sales  of 
house-lots  or  land,  being  verbal,  are  within  the  statute  of  frauds  and  not 
binding.     Being  voluntary,  they  are  usually  carried  out,  but  cannot  be 
enforced.1     A  parol  promise  by  a  grantor  to  warrant  and  defend  the  title 
to  the  land  sold  is  void,  being  within  the  statute." 

The  question  often  arises  as  to  what  is  a  lease,  or  such  an  estate  in  land 
as  to  require  a  written  instrument,  and  upon  that  question  there  are  deci- 
sions both  ways.  Without  doubt  all  agreements  for  the  permanent  occupa- 
tion of  another's  lands  or  any  part  thereof  should  be  in  writing.  So  it  has 
been  held  that  permission  to  erect  upon  the  land  of  another  a  permanent 
structure,  such  as  a  building  or  a  bridge,  or  leave  to  occupy  with  a  railroad,  a 
canal,  a  dam,  or  to  overflow  by  a  dam,  to  dig  a  drain  or  lay  a  pipe,  to  dig 
and  carry  away  coal,  ore,  stone  or  dirt,  or  to  haul  logs  across,  amounts  to  a 
lease,  since  it  is  a  grant  of  an  interest  in  the  land  itself,  and  must  be  in 
writing.  There  are  cases  which  hold  to  the  contrary  that  where  oral  per- 
mission has  been  given  to  build  a  permanent  structure  upon  lands,  as  a 
party- wall,  a  bridge,  an  aqueduct,  a  dam,  etc.,  that  although  mere  licenses 
are  ordinarily  revocable  at  any  time,  yet  having  been  acted  upon  they 
are  valid,  binding,  and  irrevocable.3  The  fact  that  there  are  such  de- 
cisions affords  no  excuse  for  one  to  accept  such  a  license  and  invest  his- 
money  on  the  strength  of  it,  if  he  can  get  a  leasfe  in  writing,  even  by  paying 
for  it. 

110.  Promises  to  Answer  for  the  Debts  of  Another. — The  statute  alst? 
requires  all  contracts  or  agreements  to  answer  for  the  debt,  default,  or  mis- 
doing (miscarriage)  of  another  party  to  be  in  writing,  or  some  memorandum 
to  be  made  in  writing,  and  signed  by  the  party  to  be  charged.     The  provi- 
sion varies  slightly  in  the  different  states,  but  the  law  is  generally  that 
promises  to  pay  other's  debts  or  to  be  surety  for  their  undertakings  must  be 
in  writing.     The  statute  includes  every  kind  of  liability  that  may  be  enforced 
in  a  civil  action,  but  the  promise  must  be  to  the  creditor  himself,  and  not  to 
the  debtor — i.  e.,  the  one  who  is  himself  liable,  the  latter  promise  is  not  within 
the  statute  of  frauds.     A  promise  by  the  debtor  himself  to  pay  is  not  within 
the  statute,  even  though  another  is  also  liable,  and  even  though  one  debtor 
promises  to  pay  if  the  other  debtor  does  not  pay.     Therefore  the  promise  of 

1  Boyd  v.  Greene  (Mass.),  39  N.  E.  Rep.          2  Kelly  v.  Palmer  (Neb.),  60  N.  W.  Rep. 
277;  and  see  Lobit  v.  McClave(Tex.),  28  S.       924. 
W.  Rep.  726.  3  8  Amer.  &  Eng.  Ency.  Law  667. 


100        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§111. 

a  partner  to  pay  a  firm  debt  is  not  within  the  statute,  while  a  stockholder's 
promise  to  pay  a  corporation  debt  is  within  the  statute. 

The  promise  must  be  to  pay  with  his  own  funds,  and  not  out  of  the 
funds  of  the  debtor  that  are  in  his  possession,  and  a  debt,  it  seems,  is  not 
funds  or  property  in  this  sense.  The  promise  must  be  for  a  good  con- 
sideration. 

111.  Application  of  the  Law  to  Construction  Work. — In  construction 
contracts,  cases  often  arise  where  the  contractor  has  failed  to  pay  his  men  or 
is  unable  to  get  materials  to  go  on  with  his  work,  and  the  owner  or  person 
to  be  benefited  by  the  performance  of  the  contract  has  promised  to  pay  for 
the  labor  and  materials  if  the  workmen  and  materialmen  will  continue  at 
work  and  to  supply  the  necessary  materials  of  construction.  When  the  owner 
makes  such  promises  it  is  important  to  ascertain  whether  he  himself  under- 
takes to  assume  the  obligation  or  whether  he  insures  the  payment  of  the 
contractor's  debt.  If  the  owner  seeks  to  obtain  a  direct  benefit  or  advantage 
to  himself,  as  to  relieve  his  property  from  a  lien,  it  is  generally  held  an  orig- 
inal obligation,  and  therefore  not  within  the  statute.1  If  it  be  the  evident 
intention  to  insure  the  payment  of  a  debt  of  another,  then  it  is  within  the 
statute,  and  must  be  in  writing.  Some  courts  have  based  their  decisions 
upon  the  fact  whether  there  was  a  new  and  distinct  consideration  for  the 
promise,  and  if  it  inured  directly  to  the  benefit  of  the  promisor,  in  which 
case  it  was  not  within  the  statute;  while  other  courts  have  ignored  these 
facts,  as  well  as  the  parties'  intentions,  and  called  it  a  collateral  obligation 
if  the  original  party  (contractor)  remained  liable,  making  the  promise 
within  the  statute  unless  the  agreement  was  a  substitute  for  the  original 
liability. 

There  are  many  cases  on  both  sides,3  but  there  is  a  safe  and  sure  way  for 
the  owner  or  his  engineer,  which  is  to  make  such  agreements  in  writing, 
and  to  make  it  clear  whether  the  undertaking  is  to  cancel  the  obligation  of 
the  contractor  and  to  substitute  the  owner,  or  whether  the  original  obliga- 
tion is  to  continue  and  the  owner  become  a  surety  for  its  performance. 

Some  cases  will  illustrate  the  law.  Thus  when  a  contractor  having  an 
apparent  purpose  to  quit  unless  payment  was  made  or  assured  was  told  by 
a  third  party  to  go  on  with  the  work  and  he  would  see  that  he  got  his  pay 
it  was  held  that  as  to  the  work  already  performed  the  promise,  not  being 
founded  on  any  consideration,  was  a  collateral  undertaking  to  pay  the  debt 
of  another,  which,  not  being  in  writing,  was  void.3  The  same  decision  was 
reached  when  a  third  party  told  the  contractor  to  go  on  and  finish  his  work 
and  he  himself  would  pay  for  it.4  In  another  case  an  oral  agreement  by  the 
owner  to  pay  a  subcontractor,  on  the  abandonment  of  the  contract  by  the 

1  Seguine  ID.  Spaeth  (Com.  PI.),  35  N.  Y.  29;  Warwick  v.  Grasholtz,  3  Grant  234. 

Supp.  847.  4Gill  v.  Herreck,  111  Mass.  501  [1873]; 

8 8  Amer.  &  Eng.  Ency.  Law  682.  Lachman  v.  Irish  (Sup.),  25  N.  Y.  Supp. 

3  Gable  v.  Graybill,  1  Pa.  Super.  Ct.  Rep.  193. 


§  111.]  LAW  OF  CONTRACTS.'  YOl 

original  contractor,  an  amount  already  due  him  from  the  latter  and  an 
additional  sum  for  extras  if  he  would  complete  the  work,  is  not  void  as 
being  a  promise  to  answer  for  the  debt  of  the  contractor.1  An  interesting 
case  is  reported  where  an  owner  had  written  to  a  subcontractor  as  follows: 
"  By  direction  of  the  contractor  and  at  the  request  of  0.  I  hereby  hold 
$2700,  which  I  hereby  agree  to  pay  you  when  the  work  has  been  delivered 
and  put  in  proper  and  workmanlike  manner;  $2500  of  which  is  to  be  charged 
on  my  contract  with  the  contractor  on  account  of  his  contract  with  C.,- 
and  $200  on  account  of  his  contract  with  me,  for  your  labor  in  putting 
said  work  in  said  place."  It  was  held  a  guaranty  to  pay  the  debt  of  C.,  and 
not  an  original  obligation  by  the  owner.2 

When  a  contract  provided  that  if  the  contractors  failed  to  furnish  mate- 
rial the  owner  would  supply  the  material  and  deduct  the  cost  from  the 
price,  and  a  materialman,  after  furnishing  certain  material  on  the  con- 
tractor's credit,  refused  to  furnish  more,  and  an  arrangement  was  made 
whereby,  on  the  contractor's  written  order  to  the  owner,  the  architect  was  to 
make  the  estimates  and  payments  directly  to  the  dealer,  it  was  held  that  the 
agreement  was  not  within  the  statute  of  frauds,  as  it  was  not  a  promise  to 
pay  plaintiff's  debt,  but  to  benefit  defendant  by  the  immediate  acquisition  of 
materials  for  the  building.3 

A  subsequent  promise  by  an  owner  to  a  materialman  to  see  that  mate- 
rials furnished  in  the  construction  of  the  owner's  house  upon  the  credit  of 
the  contractor  were  paid  for  is  not  enforceable,  and  it  will  not  support  a 
personal  judgment  against  the  owner.  Such  a  promise  was  held  a  mere 
verbal  collateral  contract.4 

If  a  contractor,  not  being  paid  by  an  owner,  has  abandoned  the  contract 
and  afterwards  resumed  it,  and  did  certain  extra  work  on  the  verbal  promise 
of  a  third  party  to  pay  him,  but  the  evidence  showed  that  he  still  looked 
to  the  owner  for  his  pay,  and  not  to  a  third  party  except  as  guarantor,  the 
promise  of  the  third  party,  not  being  in  writing,  is  void  both  as  to  the 
extra  work  and  that  done  under  the  contract.6 

A  verbal  agreement  on  the  part  of  a  supply  company  to  furnish  a  sub- 
contractor materials  for  his  subcontract,  the  bills  when  O.K.'d  to  be  paid 
by  the  contractor,  is  an  original  agreement  on  the  part  of  the  supply-men, 
and  not  an  agreement  to  pay  the  debt  of  the  subcontractor.8  It  has 
been  held,  however,  that  a  promise  by  a  contractor  to  his  subcontractor's 
men  if  they  will  continue  at  work  is  an  original  undertaking  on  a  sufficient 
consideration  which  need  not  be  in  writing.7  Promises  by  a  husband 

1  McLaughlin  v.  Austin  (Mich.),  62 N.W.  4  Farnham  v.  Davis  (Me.),  9  All.  Rep. 
Rep.  719;  Andree  v.  Bowman,  13  Md.  241.  725  [1887]. 

2  Bierschenk  v.  Stokes,  26  N.  Y.  Supp.  5  Brester  v.  Pendell,  12  Mich.  22 1  [1864] 
88;  and  see  Emerson  v.  Slater,  22  How.  28.  6  Barras  v.  Pomeroy  Coal  Co.  (Neb.),  5t 

3  Bice  v.  Marquette,  etc.,  Co.  (Mich.),  55  N.  W.  Rep.  890. 

K  W.  Rep.  382;   Calkins  v.  Chandler,  36          '  Suell  v.  Rogers  (Sup.),  24  N.  Y.  Supp 
Mich.  224,  followed.  379. 


102       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  112 

for  die  wife's  individual  debt,  or  by  the  wife  for  the  husband's  debt,  have 
been  held  to  be  within  the  statute,  and  void  if  not  in  writing.1 

In  an  action  by  a  materialman  against  a  contractor  for  lumber  furnished 
for  a  house  it  is  no  defense  that  the  owner  assumed  the  debt  unless  there 
was  a  novation  which  released  defendant.8 

The  statutes  usually  require  all  contracts  in  consideration  of  marriage 
to  be  in  writing,  or  that  there  be  a  written  memorandum  of  the  terms  of 
the  agreement  signed  by  the  party  or  his  authorized  agent.  Such  contracts 
are  marriage  settlements  or  any  agreement  which  makes  the  marriage  the 
consideration.  It  does  not  include  mutual  promises  to  marry.3 


STATUTE    OF    LIMITATIONS. 

112.  Objects  and  Reasons  for  the  Statute. — The  time  within  or  the 
period  in  which  the  obligation  of  a  contract  can  be  enforced,  or  within  which 
an  action  or  suit  can  be  brought  for  a  breach  of  a  contract,  is  limited  in  the 
United  States,  England,  and  Canada  by  certain  statutes  of  limitations.    The 
object  of  these  statutes  is  to  require  people  to  enforce  their  rights  within 
a  reasonable  time  or   to   abandon  them.     They  are   calculated   to   give 
security  and  repose  to  business,  and  to  relieve  the  parties  from  the  necessity 
of  preserving  indefinitely  their  receipts  and  other  evidence  of  settlement. 
It  provides  against  the  evils  that  arise  from  loss  of  evidence  and  the  failing 
memory  of  witnesses,  and  relieves  the  defendant  from  the  burden  of  keep- 
ing track  of  witnesses  and  preserving  documentary  evidence  in  the  constant 
apprehension  of  being  called  upon  to  defend  himself  in  an  action  at  law, 
while  the  claimant  is  required  to  employ  reasonable  diligence  in  prosecuting 
his  claims.     The  statutes  may  prove  an  obstacle  to  just  claims,  as  where  a 
party  may  not  be  able  to  pay  during  the  period,  but  afterwards  becomes 
affluent,  or  where  it  is  within  the  power  of  the  defendant  to  avoid  and  evade 
a  suit  during  the  statutory  period.4 

The  statute  had  its  inception  in  the  convenient  rule  made  by  courts  that 
after  twenty  years  a  presumption  arose  that  debts  and  even  bonds  had 
been  paid  or  released  unless  the  delay  was  explained  by  the  creditor  and  he 
showed  that  they  had  not  been  paid.  In  fact,  independently  of  any  statute 
of  limitation,  courts  of  equity  have  inherent  powers  to  refuse  relief  after 
undue  and  unexplained  delay,  and  when  injustice  would  be  done  by  grant- 
ing the  relief  asked,  and  the  doctrine  applies  to  suits  relating  to  land.5 

113.  Statute  Does  Not  Destroy  the  Contract  Obligation,  but  Affects  the 
Remedy  or  Means  of  Enforcing  It. — The  statute  does  not  and  cannot  affect 

1  Brennan  v.    Chapin,  19   N.   Y.    Supp.  3  8  Amer.  &  Eng.  Ency.  Law  684;  Short 

237;  Perkins  u.  Westcoat  (Colo.),  33  Pac.  0.  Statts.  58  Ind.  29  [18771. 

Rep.  189.  4 13  Amer.  &  Eng.  Ency.  Law  736. 

*  Aidritt  v.  Panton  (Mont.),  42  Pac.  Rep.  5  Abraham  v  Ordway,  15  Sup.  Ct.  Rep. 

W.  894. 


§  114.]  LAW  OF  CONTRACTS.  103 

the  contract  obligation,  it  is  no  part  of  the  contract,  but  it  denies  the 
claimant  a  means  of  enforcing  his  right  in  a  court  of  law  after  he  has 
delayed  a  certain  number  of  years  to  enforce  it.  It  affects  the  action  only, 
and  not  a  defense.  Thus  a  defendant  may  show  that  a  contract  was  pro- 
cured by  fraud,  though  the  statutory  period  has  passed.  A  counter-claim 
or  cross-complaint  is  not  a  defense  in  this  sense.  The  statute  has  only  to  do 
with  the  remedy  for  a  breach  of  the  contract,  for  without  a  breach  there  is 
no  action  on  a  contract.  When  the  statutory  period  has  elapsed  no  action 
can  be  brought  in  a  court  of  law,  and  courts  of  equity  decline  to  entertain 
suits  when  an  action  at  law  is  barred  unless  there  are  circumstances  show- 
ing fraud  or  oppression. 

Much  difference  of  opinion  has  been  expressed  as  to  whether  the  statute 
affects  the  right:  of  the  claimant  so  that  if  the  statutory  period  be  changed 
(extended)  it  restores  the  claimant's  right  to  sue.  Whether  or  not  this  be 
so,  it  is  well  settled  that  the  statute  does  not  destroy  the  obligation,  and 
that  it  affects  only  the  remedy,  and  not  the  merits  of  the  claim.1 

114.  Disabilities  that  May  Prevent  the  Operation  of  the  Statute— Per- 
sonal Disabilities. — Since  the  defense  of  the  statute  is  given  on  the  presump- 
tion that  the  claimant  has  been  guilty  of  laches,  it  follows  that  if  no  delay 
can  be  imputed  to  the  claimant,  then  the  statute  ought  not  to  apply.  If  the 
ability  to  bring  an  action  has  been  taken  away  from  the  claimant,  or  he  has 
been  disabled  from  bringing  an  action  of  law,  i.  e.,  if  he  (she)  were  in 
infancy,  insane,  idiotic,  or  under  coverture,  except  where  women  have  the 
right  to  sue  and  be  sued,  or  his  (her)  residence  was  in  a  foreign  country  or 
state,  such  disability  must  have  existed  when  the  right  of  action  accrued, 
for  if  the  statute  had  commenced  to  run  no  subsequent  disability  would 
interrupt  it.  If  a  contractor  dies  even  a  day  after  his  cause  of  action 
accrued,  that  day  was  sufficient  to  set  the  statute  in  motion,  and  if  an  infant 
heir  were  left  the  infant  cannot  plead  his  disability,  though  there  was  no 
time  during  the  whole  period  when  he  was  of  age  and  able  to  bring  an 
action.  This  may  seem  unjust,  but  the  rule  seems  a  necessary  rule  to  insure 
the  security  and  repose  for  which  the  statute  was  created.  For  the  same 
reason  one  disability  cannot  be  tacked  or  added  to  a  previous  disability 
partly  or  entirely  run  out. 

Therefore  if  a  woman  is  an  infant  when  her  right  of  action  accrues,  and 
before  she  becomes  of  age  she  marries,  becomes  insane  before  her  husband 
dies,  and  then  dies  leaving  infant  children,  only  the  first  disability  of  infancy 
will  prevent  the  statute  from  setting  in,  and  it  will  bar  the  statute  only  so 
long  as  the  woman  was  an  infant.  Such  a  case  shows  how  the  very  object 
of  the  statute  might  be  subverted  if  such  a  rule  were  not  maintained.  Sev- 
eral generations  might  live  under  disabilities  in  families  in  which  early 
marriages,  insanity,  and  short  lives  were  hereditary. 

1 13  Amer.  &  Eng.  Ency.  Law  693-704. 


104       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  115, 

If  the  action  accrue  when  the  party  is  under  more  than  one  coexisting 
disability,  the  statute  will  not  be  set  in  motion  until  they  are  all  removed. 
Therefore  if,  when  the  right  to  an  action  accrues,  a  woman  be  married, 
under  twenty-one  years  of  age,  and  insane,  and  her  husband  died  at  thirty 
and  she  became  sane  at  forty,  the  statutory  period  would  not  begin  to  run 
until  she  were  forty. 

So  long  as  there  is  nobody  against  whom  the  claimant  can  bring  an 
action  the  statute  of  limitations  does  not  run.  Such  cases  arise  when  th& 
administrators  of  the  defendant  have  not  been  appointed,  though  it  does  not 
exclude  the  time  between  the  death  of  the  claimant  and  his  administrator. 

115.  The  Letter  of  the  Law  is  Applied  Strictly,  without  Regard  to  Hard- 
ship or  Misfortune. — The  statute  does  not  run  against  a  town  until  it  is  in- 
corporated and  has  capacity  to  sue.  There  are  exceptions,  however,  to  this- 
rule  in  California1  and  Georgia.  The  statutes  of  many  states  contain  special 
provision  for  such  cases,  which  statutes  should  be  consulted.  There  has 
been  a  doctrine,  which  is  no  longer  accepted,  that  an  inherent  equity  would 
create  an  exception  to  the  rule,  but  the  general  law  now  is  that  the  language 
of  the  act  must  prevail,  and  no  reason,  based  on  apparent  inconvenience  or 
hardships,  can  justify  a  departure  from  it.8  This  is  illustrated  by  a  remark- 
able case  in  which  a  city  eluded  the  service  of  summons  during  the  whole 
period  of  ten  years,  the  statutory  period.  Each  year,  as  soon  as  the  officers 
of  the  city  were  elected,  they  met  and  transacted  what  business  was  neces- 
sary, in  a  secret  place,  with  doors  locked  and  sentries  posted,  after  which  they 
filed  their  resignations,  which  by  law  took  effect  immediately,  leaving  no- 
officer  of  the  city  upon  whom  the  railroad  company,  who  held  the  city's 
bonds,  could  serve  summons.  The  court  held  that  however  dishonest  and 
wrong  morally  it  was  for  a  debtor  to  evade  services  of  process,  it  was 
not  fraudulent  in  a  legal  sense,  and  that  as  it  did  not  come  within  aay 
express  exception  of  the  statute,  the  court  could  not  make  it  one,  as  that 
would  be  making  a  law  instead  of  administering  it,  the  former  of  which  is 
for  the  legislature,  the  latter  for  the  courts.3 

War  is  such  a  disability  or  condition  as  will  prevent  the  statute  from 
operating.  It  must  affect  the  parties  or  be  of  such  duration  and  character 
as  to  close  the  courts.  War  will  not  only  prevent  the  statute  from  taking 
effect,  but  it  will  interrupt  the  running  of  the  statute  for  the  term  that  the 
war  existed. 

116.  Statute  Does  Not  Operate  against  the  Government.— The  state  nor  the 
United  States  are  not  barred  unless  it  is  so  expressly  provided  in  the  statute.4 
The  business  of  the  government  being  transmitted  entirely  through  agents, 
who  are  so  numerous  and  scattered,  the  utmost  vigilance  would  not  protect 

1 13  Amer.  &  Eng.  Ency.  Law  737.  4  Slantey  v.  Schwalby  (Tex.),  19  8.  W. 

2 13  Amer.  &  Eng.  Ency.  Law  735.  Rep. 264  [1892] ;  Jefferson  City  V.  Whippler 

3  Amy.  v.  Watertown  (Wis.),   22  Fed.  71  Mo.  519  [1880]. 
Rep.  418. 


§  118.]  LAW  OF  CONTRACTS.  105 

the  public  from  losses  and  combinations  to  defraud  the  government.  The- 
government  is,  therefore,  exempt  from  the  operation  of  the  statute  upon  the 
grounds  of  public  policy,  and  not  upon  the  notion  of  extraordinary  preroga- 
tive. This  exemption  is  accorded  to  the  different  branches  of  the  gov- 
ernment only  when  they  act  in  the  sovereign  capacity.  If  the  govern- 
ment engages  in  purely  business  transactions,  as  in  banking,  it  is  held 
to  be  divested  of  its  sovereignty,  and  to  no  longer  be  exempted  from  the' 
statute. 1 

Eights  of  a  public  nature  cannot  be  lost  from  the  lapse  of  time,  but 
when  the  rights  involve  a  mere  claim  of  dollars  and  cents  and  involve  no 
question  of  governmental  right  or  duty,  the  courts  hold  the  government  to  tha 
ordinary  rules  controlling  courts  of  equity.  In  general,  in  ordinary  business 
transactions,  cities,  towns,  counties,  and  school  districts  are  within  the  statute- 
of  limitations  as  much  as  the  individuals  with  whom  they  do  business.2 
Trespass,  nuisances,  and  other  encroachments  upon  public  property  cannot 
be  supported  by  possession  and  enjoyment  for  any  length  of  time,  for  public 
rights  cannot  be  lost  by  adverse  possession,  unless  the  statute  has  expressly 
included  the  government. 

Though  the  government  is  not  required  to  plead  the  statute  when  plain- 
tiff to  a  suit,  it  can  plead  the  statute  against  its  subjects  when  sued  by  them, 
and  it  seems  its  representative  officers  have  no  power  to  waive  the  statute.* 
The  defense  of  limitations  must  be  raised  in  the  trial  court  ; 4  it  cannot  be 
raised  for  the  first  time  on  appeal.5 

117.  Agreements  to  Waive  the  Protection  of  the  Statute. — Agreements  to 
waive  the  statute  of  limitations  or  to  not  plead  it  in  certain  actions,  even 
though  founded  upon  a  good  consideration,  have  been  held  void  as  against 
public   policy.     Such   agreements  may  amount  to  a  new  promise  to  pay 
a  claim  and  take  the  claim  out  of  the  statute  as  to  the  length  of  time  already 
transpired,  but  not  as  to  the  future.6 

The  bringing  of  a  suit  by  the  claimant  stops  the  statute  running,  and 
the  rule  is  pretty  well  settled  that  the  day  on  which  the  action  accrues 
is  excluded  in  computing  the  statutory  period.  In  some  states  the  action 
is  begun  by  the  actual  service  or  by  the  delivering  of  summons  to  the 
sheriff. 

118.  New  Promises  May  Interrupt  the  Running  of  Statute  and  Forfeit 
Its  Protection. — A  contractor  or  party  to  a  contract,  express  or  implied,  may 
have  lost  the  protection  that  the  statute  would  have  afforded  him  by  making 
new  promises,  acknowledging  the  debt,  or  part  payments  upon  a  long  stand- 
ing account  or  contract.     An  express  promise  to  pay  a  debt,  or  acts  or  words 
from  which  the  law  can  imply  a  promise  will  make  a  new  cause  of  action 

1  See  United   States  v.  North  Amer.  C.       Rep.  261. 

Co.  (C.  C.),  74  Fed.  Rep.  145.  5  Eiseman  «.   Heine    (Sup.),   37  N.  Y. 

2  13  Amer.  &  Eng.  Ency.  Law  715.  Supp.  861;  Pickett  v.  Edwards  (Tex.),  25 

3  13  Amer.  &  Eng.  Ency.  Law  716.  S.  W.  Rep.  32. 

4  Shaver  v.   Sharp  Co.  (Ark.),  34  S.  W.  6 13  Amer.  &  Eng.  Ency.  Law  717. 


106       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  119 

which  can  be  sued  upon  any  time  within  the  full  statutory  period;  it  starts 
the  statute  anew  from  the  date  of  the  express  or  implied  promise.  Any 
acknowledgment  of  the  debt,  such  as  part  payment,  unless  accompanied  by 
declarations  or  circumstances  which  clearly  indicate  that  the  act  is  not  an 
acknowledgment  of  the  debt  or  claim,  will  be  sufficient  for  the  law  to  imply 
a  new  promise  to  pay. 

Part  payment  of  the  principal,  payment  of  interest,  or  an  acknowledg- 
ment indorsed  upon  a  note  is  usually  sufficient  to  start  the  statute  afresh, 
but  the  payments  must  be  voluntary,  so  that  a  promise  may  be  implied.  If 
the  promise  is  "  to  pay  as  soon  as  I  can  "  or  on  the  happening  of  a  certain 
event,  then  it  must  be  shown  that  the  promisor  has  since  been  able'  to  pay 
or  that  the  event  has  transpired.  The  acknowledgment  must  specify  the 
amount  of  the  debt  and  the  debt  referred  to  if  it  cannot  be  in  some  manner 
connected  with  the  debt  or  account  to  which  it  relates.  It  is  sufficient  if 
the  amount  can  be  computed.  An  acknowledgment  that  one  owes  another 
for  services  has  been  held  sufficient,  and  the  wages  may  not  have  been 
agreed  upon.  Usually  the  acknowledgment  must  be  in  writing  by  the 
debtor  or  his  authorized  agent,  and  must  be  communicated  to  the  creditor 
or  his  agent.1 

119.  Injury  Concealed  by  Fraud,  so  that  Right  of  Action  was  Not  Known. 
— Cases  frequently  arise  in  construction-work  where  the  cause  of  action  is 
not  discovered  at  the  time  it  accrues,  as  where  inferior  work  or  poor  mate- 
rials have  been  used  and  their  use  concealed  from  the  owner,  and  have  not 
been  discovered  for  some  years  thereafter.  It  is  an  established  rule  in 
courts  of  equity  that  fraudulent  concealment  of  the  cause  of  action  011  the 
part  of  the  contractor  will  deny  him  the  protection  of  the  statute  of  limita- 
tions so  long  as  the  owner  remains  ignorant  of  his  rights  or  the  injury  he 
has  suffered.  However,  this  is  no  special  rule,  for  it  is  a  general  practice 
for  courts  of  equity  to  give  relief  to  one  on  whom  fraud  has  been  practiced. 
Courts  of  law  have  sometimes  followed  the  rule,  though  not  universally,  and 
it  has  been  generally  applied  in  courts  having  concurrent  jurisdiction  of 
both  law  and  equity  cases.2 

When  fraudulent  practice  has  been  concealed,  the  time  will  not  begin  to 
run  in  favor  of  the  perpetrator  of  the  fraud  until  the  fraud  has  been  dis- 
covered, or  until  it  might  have  been  discovered  if  reasonable  diligence  had 
been  exercised.3  The  party  defrauded  must  be  diligent,  and  a  clue  to  facts 
which  if  followed  up  diligently  would  have  led  to  a  discovery  has  been  held 
equivalent  to  a  discovery.4  The  recording  of  a  deed  has  been  held  sufficient 
notice,  so  that  there  should  have  been  a  discovery.5 

1 13  Amer.  &  En<r.  Ency.  Lnw  748  et  fteq.  4  Norris  v.  Haggin,  28  Fed.  Rep.  275,  and 

9  Leake's  Digest  of  Law  of  Contracts  977;  cases  cited. 

Troup  v.  Smith.  20  Johns.  (N.  Y.)  33;  13  5Beattie  v  Pool,  13  S.  Car.  383:  but  see 

Amer.  &  Eng.  Ency.  Law  728.  Herndon  v.  Lewis  (Tenn.),  36  S.  W.  Rep. 

3  Kirby  v.  Lake  Shore,  etc.,  R.,  120  U.  953. 
S.  130;  Ainy  v.  Watertown,  130  U.  S.  320. 


§  121.]  LAW  OF  CONTRACTS.  107 

The  fact  that  the  contractor  has  made  no  special  effort  to  conceal  the 
fraud  does  not  give  him  the  protection  of  the  statute  in  a  court  of  equity,1 
but  at  law  the  fraud  must  have  been  committed  by  affirmative  acts. 
Concealment  without  fraud,  it  seems,  is  not  sufficient  to  toll  the  statute,  nor 
is  fraud  without  concealment. 

In  some  states  the  statute  is  tolled,  i.e.,  inoperative,  only  in  such  actions 
for  relief  on  the  ground  of  fraud  as  were  originally  recognized  in  equity, 
while  in  other  states  and  in  England  the  statute  is  made  to  run  only 
from  the  time  the  fraud  was  discovered  or  might  have  been  discovered 
with  reasonable  diligence.  Each  case  must  be  decided  by  the  law  of  the 
.state  by  which  it  is  governed.  It  is  sufficient  for  the  purpose  of  this  work 
to  give  a  general  idea  of  the  law,  so  that  engineers,  architects,  and  con- 
tractors may  avoid  difficulty  and  litigation. 

120.  Bad  Work  Concealed  When  under  Inspection  and  Supervision  of 
Engineer. — How  far  the  inspection  and  supervision  of  work  by  the  owner's 
architect  or  engineer  would  excuse  the  contractor  from  the  charge  of  fraudu- 
lent concealment  would  be  a  matter  of  fact  in  each  case.     If  there  was  no 
express  act  on  the  part  of  the  contractor  to  conceal  bad  work,  no  deception 
practiced   upon   the   inspectors,  such  as  enticing  them  away,  or  working 
secretly  at  hours  when  the  work  was  supposed  to  be  idle,  or  of  bribing  them 
to  pass  imperfect  work,  it  may  well  be  doubted  if  poor  work  not  in  accord- 
ance with  the  contract  would  be  called  fraudulent,  or  that  it  could  be  said 
to  be  concealed.     This  would  be  especially  true  when  the  fact  of  an  in- 
spector's being  appointed  and  every  clause  of  the  contract  shows  that  it  was 
feared,  if  not  expected,  that  the  contractor  would  take  advantage  of  every 
opportunity  to  slight  the  work  and  effect  every  saving  possible  to  himself. 

Collusion  between  the  contractor  and  engineer  or  architect  by  which  the 
latter  was  to  pass  work  or  materials  which  it  was  his  duty  to  reject  or  report 
to  his  employer  would  without  doubt  amount  to  a  fraud  which  would  give 
relief  in  equity  to  the  owner  or  proprietor.  A  failure  on  the  part  of  one 
holding  fiduciary  relations  or  relations  of  confidence  and  trust  to  report 
what  it  was  his  peculiar  duty  to  disclose  has  been  held  a  fraudulent  con- 
cealment.2* It  has  been  held  that  fraudulent  concealment  by  an  agent  of 
the  amount  collected  for  his  employer  prevented  the  running  of  the  statute.3 
A  petition  based  on  fraud  which  was  practiced  more  than  the  statutory 
period  before  the  beginning  of  the  suit  should  allege  that  the  fraud  was 
•discovered  within  the  period  of  limitations.4 

121.  Liability  of  Engineer  for  Misconduct  after  Statutory  Period  has 
Elapsed. — It  seems  that  an  engineer  or  architect  or  attorney  cannot  be 
prosecuted  for  misconduct,  negligence,  or  mistake  in  designing,  examining, 

1 13  Amer.  &  Eng.  Ency.  Law  683.  Rep.  197. 

2  13  Amer.  &  Eng.  Ency.  Law  729.  4  McCalla  v.  Daugherty  (Kan.  App.),  46 

5  Bonner  v.  McCreaiy  (Tex.),  35  S.  W.      Pac.  Rep.  30. 

*  Set  Sec.  249a,  infra. 


108      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  122. 

or  inspecting  work  or  drafting  papers,  etc.,  after  the  statutory  limit  (usually 
six  years)  from  the  time  the  act  or  negligence  was  committed,  although  it 
was  not  known  to  the  employer  and  was  not  discovered  by  him  until  the- 
period  of  limitation  had  elapsed.  It  has  been  held,  therefore,  that  one  who- 
has  been  employed  to  examine  titles  or  securities  and  has  done  so  in  a  negli- 
gent manner,  whereby  money  loaned  upon  it  has  been  lost,  the  right  of 
action  dates  from  the  negligence  or  misconduct.1  The  cause  of  action  ac- 
crues the  moment  the  employee  fails  to  do  what  he  agreed  to  do. 

In  some  states  the  time  is  limited  by  statute  in  which  a  person  may 
bring  his  action  after  he  has  discovered  the  fraudulent  concealment.  In 
Alabama  only  one  year  is  given,  in  Michigan  and  Kansas  two  years,  and  in 
Colorado  three  years.  In  Missouri  the  discovery  must  be  made  within  ten 
years,  and  in  Kentucky  the  action  must  be  brought  in  ten  years  or  it  is- 
barred,  whether  the  fraud  be  discovered  or  not. 

An  action  for  breach  of  a  contract  will  lie  at  once  on  a  positive  refusal 
to  perform,  though  the  time  specified  for  performance  has  not  arrived.2 

When  extra  work  or  extra  expense  is  required  to  carry  out  changes  in 
the  plans  of  work  done  under  a  contract,  the  period  of  limitations  does  not 
begin  to  run  while  the  contract  is  executory.3 

LAW  OF  CONTKACTS.   PKOOF  OF  TEEMS  OF  COLLATERAL  CONTRACT. 
PAROL  OR  VERBAL  AGREEMENTS. 

122.  Parol  Evidence  Not  Admissible  to  Vary  or  Contradict  a  Written 
Contract. — Parol  evidence  of  what  was  said  or  done  before  or  at  the  time 
of  making  a  written  contract  is  not  admissible  to  alter,  vary,  or  contradict 
the  express  terms  of  that  contract.  The  proposition  is  of  too  long  standing 
and  is  too  well  recognized  as  one  of  the  foundation  principles  of  the  law  to- 
be  questioned.4 

It  is  a  general  rule  of  law  that  when  parties  have  deliberately  put  their 
engagements  in  writing  in  such  terms  as  import  a  legal  obligation,  without 
any  uncertainty  as  to  the  object  or  the  extent  of  such  engagement,  it  is 
conclusively  presumed  that  the  whole  engagement  of  the  parties  and  the 
extent  and  manner  of  their  undertaking  were  reduced  to  writing.5  In  such 
case  to  add  to  it  by  implication  would  be  to  vary  its  terms  and  legal  effect.* 

1  Leake's  Digest  of  Contracts  977;  Short      As  to  responsibility  when  injury  results 
V    McCarthy,  3  B.  &  Aid.  626;  Brown  v.       from  an  undiscovered  defect  in  the  engi- 
Howard,  2  B.  &  B.  73;  Howell  v.  Young,       neering  works,  see  Underbill  on  Torts  17. 

5  B.   &  C.    259;   Wilcox   t>.    Plummer.  4  4  Bishop  on  Contracts  175,  355,  58,  and 

Pet.  172;  Argall  v.  Bryant,  1  Sandf.  99;  cases  cited;  17  Amer.  &  Eng.  Ency.  La\v 

Rankin  v.  Shaeffer,  4  Mo.  App.  108.  420. 

2  Donovan  v.  Sheridan  (Super.  N.  Y.),  5  McKinley  v.  Williams  (C.  C.  A.),  74 
24  N.  Y.  S.  116.  Fed.  Rep.  94. 

3  Gibbons  <o.  United  States,  15  Ct.  of  Cl.  6  Merchants'  Ins.    Co.   v.   Morrison,    62 
174  [1879];  and  see  Wilkinson  v.  Johnston  111.  242  [1871];  see  also  69  111.  226,  13  111. 
(Tex.).  18  S.W.  Rep. 746;  O'Brien  t>.  Sexton  App.  503. 

(111.),  30N.  E.  Rep.  461  [1892];  and  Knight          This  presumption  may  be  overcome  if 
«.  Knight  (Ind.),  30  N.  E.  Rep.  421  [1892].      the  parol  evidence  be  admitted  without 


§  122.]  LAW  OF  CONTRACTS.  109 

All  conversations  and  agreements  had  or  made  and  tending  to  vary  or  con- 
tradict the  provisions  of  the  written  contract  are  inadmissible  as  evidence  to 
show  the  meaning  or  intention  of  the  parties.  The  written  contract  must 
be  taken  to  express  the  final  intention  and  understanding  of  the  parties. 
Whether  the  evidence  offered  be  conversations,  correspondence,1  or  previous 
oral  understandings  with  regard  to  the  same  subject-matter,  it  is  not  admis- 
sible if  the  contract  be  clear  and  certain  in  its  terms.2 

If  there  is  any  one  thing  that  should  be  impressed  upon  the  minds  of 
engineers,  architects,  contractors,  and  builders  alike,  as  well  as  upon  the 
minds  of  owners,  officers,  and  managers,  it  is  the  fact  that  a  written  contract 
should  be  complete.  It  should  contain  every  term  and  provision,  stipula- 
tion and  condition  that  the  parties  are  agreed  upon.  It  should  embody 
•every  item  of  prior  and  contemporaneous  agreements  that  they  intend  shall 
be  the  basis  of  the  contract.  It  should  not  only  provide  for  present  and  exist- 
ing conditions,  but  should  anticipate  every  difficulty  and  controversy  that  may 
arise  in  the  execution  of  the  contract  or  the  prosecution  of  the  work.  When 
the  contract  is  made  and  entered  into  is  the  time  to  insist  that  all  the  terms 
agreed  upon  shall  be  incorporated  in  the  written  instrument;  and  for  either 
party  to  take  the  word  of  the  other  that  "  this  or  that  is  understood,"  or  to 
be  satisfied  with  the  assurance  that  "  we  will  make  that  all  right,"  is  to 
sacrifice  so  much  of  the  consideration. 

Every  man  is  presumed  to  know  the  effect  of  a  contract  which  he  signs, 
.and  he  can  have  no  action  against  the  other  party  for  misrepresentations 
made  to  him  as  to  its  illegal  effect;  nor  will  such  misrepresentations  invalidate 
the  contract.3  When  there  is  evidence  that  the  contractor  read  the  contract 
sued  on,  he  cannot  be  heard  to  say  that  he  was  misinformed  by  the  other 
parties  as  to  its  legal  effect.* 

If  the  intention  of  the  parties  be  clear,  the  court  will  not  look  beyond 
the  four  corners  of  the  paper  for  the  entire  contract,  nor  will  it  listen  to  any 
testimony  as  to  prior  conversations,  understandings,  correspondence,  or 
promises  without  there  is  an  independent  consideration  to  support  them. 
It  was  therefore  held  that  where  a  contract  was  silent  as  to  the,  time  of 
performance  of  a  contract,  evidence  of  a  contemporaneous  agreement  as  to 
when  it  was  to  be  done  could  not  be  received  to  vary  the  ordinary  legal  con- 
struction that  it  was  to  be  performed  in  a  reasonable  time.6  So  when  a  con- 
tract has  been  signed  for  the  insertion  of  an  advertisement  in  a  paper  for  one 

objection.     Brady  v.  Nally  (N.  Y.  App.),  of  a  patent  actionable,  8  Amer.  &  En£. 

45  N.  E.  Rep.  547.  Ency.  Law  636,  if  the  person  to  whom 

1  Eaton  v.   Gladwell  (Mich.),  66  N.  W.  they  are  made  has  the  same  means  of  in- 

Rep.  598.  formation. 

Bryan  v.  Idaho  Quartz  Min.  Co.  (Cal.),  4  Kinsman  &  Co.  v.  Shawley,  1  Mo  App 

14  Pac.   Rep.    859;    Wonderly  v.  Holmes  Rep'r  281. 

Lumber  Co.,  56  Mich.  413  [1885];  Curtiss  5Liljengren    Fur.,    etc.,     Co    v     Mead 

«.  Waterloo,  38  Iowa  266  [1874].  (Minn.),   44  N".  W.  Rep.   306-  Boehm  v. 

3  8  Amer.  &  Eng.  Ency.  Law  636.     Nor  Lies,  18  N.  Y.  Supp.  577. 
are  false  representations  as  to  the  validity 


110      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  123. 

year  at  a  price  named,  payable  quarterly,  it  cannot  be  shown  that  there  was 
an  understanding  at  the  same  time  that  the  advertisement  could  be  stopped 
at  any  time  if  it  did  not  suit,1  or  that  it  was  agreed  at  the  time  of  signing 
the  contract  that  the  advertisement  and  cut  should  be  submitted  to 
defendant  for  his  approval.2  When  a  contractor  has  taken  work  to  be 
completed  by  a  certain  time  or  to  be  delivered  at  a  certain  place,  he  cannot 
prove  that  the  completion  of  the  work  was  to  depend  on  the  delivery  of  cer- 
tain materials,  or  on  the  navigability  of  certain  streams,3  or  that  the  defend- 
ant railroad  company  was  to  haul  the  materials,4  or  that  the  contract 
price  was  one  suitable  for  a  rough  job  only,5  or  that  the  owner  and  his  engi- 
neer had  agreed,  before  the  contract  was  executed,  as  to  the  quality  of  mate- 
rials and  as  to  a  standard  for  comparison.6 

The  rule  against  admitting  parol  evidence  to  alter  or  contradict  a  writ- 
ten contract  applies  to  the  signature  of  the  parties  as  well  as  to  the  body  of 
the  contract.7 

123.  When  Parol  Evidence  will  be  Received.— Parol  evidence  of  a  con- 
tract is  admissible  under  the  following  circumstances:  1.  To  show  that 
there  is  not  and  never  was  a  legal  contract.  This  will  admit  evidence  to  show 
that  the  contract  lacked  any  of  the  essential  elements  of  a  lawful  contract, 
the  incapacity  of  the  parties,  a  want  or  a  failure  of  the  consideration,  or  that 
the  consideration  was  illegal  or  immoral,  or  that  its  object  or  purpose  was 
illegal  or  against  the  policy  of  the  law,  that  the  mutual  understand- 
ing of  the  parties  was  not  correctly  expressed,  or  that  it  was  not 
executed  or  acknowledged  as  required  by  law,  or  was  not  delivered,  or 
was  delivered  in  escrow  or  subject  to  a  condition,  or  that  it  was  obtained 
by  duress,  menace,  fraud,  or  collusion,  which,  as  is  well  known,  vitiates 
all  acts,  however  solemn.8  2.  To  show  that  the  contract,  though 
absolute  on  its  face,  was  and  is  subject  to  a  condition  prece- 
dent to  its  performance.  Such  evidence  must  prove  the  existence  of  a. 
separate  parol  agreement  that  the  obligation  should  not  attach  until  the 
condition  precedent  was  performed  or  the  event  had  transpired.9  3.  To  explain 
the  meaning  of  technical  words  and  expressions,  and  to  prove  the  existence 
of  certain  customs  and  usages.  In  construction  work  such  technical  words  and 
phrases  are  those  used  in  the  trades,  or  by  engineers  and  architects  in 
the  practice  of  their  profession;  and  the  customs  and  usages  are  those  which 
have  grown  up  in  the  business,  and  may  consist  of  certain  rules  by  which 

1  Cohen  v.  Jockoboice  (Mich.),  59  N.  W.  Rep.  598.     Other  cases  see  Monroe  v.  Per- 

Rep.  665.  kins,   9  Pick.  298;    Rand  v.    Mather,    11 

2Coleman  v.  Rung,  31  N.  Y.  Stipp.  456.  Cush.  1;  59  Am.  Dec.  181. 

3McNeeley?>.  Me  Williams,  13  Ont.  App.  7  Bulwrinkle   v.   Cramer,   3  S.  E.  Rep, 

324  [1887].  776  [1887]. 

4  Scott  «.  Norfolk  &  W.  R.  Co.  (Va.),  8Byerstet  v.  Winona  Mill  Co.  (Minn.), 

178  E.Rep.  882.  51  N.  W    Rep.  619  [1892];   17  Amer.   & 

5Crow0.  Becker,  5Robt.  (K  Y.)  262.  Eng.   Ency.    Law    438;    Best's    Chamber- 

6  Jones  v.  Risley  (Tex.),  32  S.  W.  Rep.  layne's  Principles  of  Evidence  235. 

1027;  Eaton  v.  Glad  well  (Mich.),  66  N.  W.  9 17  Amer.  &  Eng.  Ency.  Law  436. 


§123.]  LAW  OF  CONTRACTS.  Ill 

measurements  are  made  and  work  is  estimated.1  It  is  well  established  that 
parol  evidence  will  not  be  received  of  a  usage  which  is  repugnant  to  the 
express  terms  of  the  contract,2  though  there  are  cases  in  which  "  black  "  has 
been  shown  to  mean  "  white,"  and  in  which  "  one  "  has  been  shown  to  mean 
"  two  or  more."  *  4.  It  may  be  shown  by  parol  evidence  in  what  character 
the  parties  contracted — that  one  or  both  were  acting  in  the  capacity  of  an 
agent,  officer,  trustee,  or  administrator.  5.  Parol  evidence  may  be  received 
of  a  prior  agreement  based  upon  a  sufficient  consideration  as  a  defense  to  a 
suit  for  specific  performance.3 

It  is  the  duty  of  a  court  to  make  an  agreement  effective  if  possible,  and 
oral  evidence  will  be  received  to  identify,  describe,  or  explain  a  contract.4 
If  it  is  incomplete,  oral  evidence  will  be  admitted  to  supply  matter  omit- 
ted from  the  writing  where  it  is  apparent  from  the  writing  itself  that  some- 
thing has  been  left  out.  So  when  a  deed  conveys  "  all  my  real  estate " 
without  any  other  description,  eviden9e  will  be  received  to  locate  the  prem- 
ises,5 and  to  show  that  the  parties  of  a  written  lease  of  "  four  acres  out  of 
lot  four  "  had  agreed  on  certain  boundaries  thereof.6 

The  facts  existing  at  the  time  the  contract  was  made,  and  of  the  circum- 
stances of  the  parties,  and  of  the  building,  may  be  shown  when  the  question 
is  as  to  whether  a  building  was  to  be  a  two  or  a  three  story  structure,  no 
plans  having  been  drawn  or  prepared.7  Oral  evidence  has  been  admitted 
to  show  quantities,  and  to  show  that  certain  plans  and  specifications  not 
referred  to  in  the  contract  were  submitted  to  the  contractor  for  his  estimate 
of  cost,  and  that  such  plans  and  specifications  were  modified  by  subsequent 
parol  agreement.8  Oral  evidence  is  admissible  to  identify  a  prior  contract 
incorporated  into,  or  specifications  referred  to,  in  a  contract  to  erect  a 
structure,  and  when  identified  they  may  be  considered  in  connection  with 
the  contract  to  determine  whether  or  no  the  contract  is  void  for  uncertainty. 

If  the  contract  and  specifications  appear  inconsistent,  such  variance  may 
be  explained  by  oral  testimony.  If  the  papers  when  taken  together  show 
clearly  that  the  specifications  are  incomplete,  evidence  may  be  admitted  to 
explain  them  or  to  supply  the  parts  omitted.10 

If  a  contract  to  rebuild  a  wall  fails  to  show  how  much  of  the  old  wall 
is  to  be  taken  down,  it  may  be  shown  by  parol  evidence  what  was  contem- 

1  Ford  0.  Beech,  L.  R.  11  Q.  B.  866.  ford  (Tex.),  27  S.  W.  Rep.  790. 

2  Myers  v.  Sari,  30  L.  J.  Q.  B.  9;  Mallan  6  Schneider  «.    Patterson   (Neb.),  57  N. 
v.  May,  13  M.  &  W  517.  W,  Rep.  398  ;  Trinley  u.  McDowell,  24  S. 

3  See  13  Solicitors'  Journal  &  Rep.,  pp.  W.  Rep.  928. 

312,  336,  353,  and  373.  '  Doane  College  v.  Lanham  (Neb.),  42  N. 

4Coleman  v.  Man.  Imp.  Co.,  94  N.  Y.  W.  Rep.  405  [1889]. 

229;  Howard   ®.   Pepper,   136  Mass.  28;          8  Isaacs  v.  Smith,  55  N.  Y.  Super.  Ct. 

Bennett  v.  Pierce,  28  Conn.   315  ;  Hilde-  446  [1888]. 
brand  v.  Fogle,  20  Ohio  147.  »Bcrgin   v.    Williams,    138   Mass     544; 

5  2  Parsons  on  Contracts  549,  21  Wend.  Comer  u.  Comer  (111.),  11  N.  E.  Rep.  848 

652,    13   Peters   89  ;    see   also   Primey  v.  [1887]. 
Thompson,  3  la.   74  ;  McKinzie  v.  Staf-          10  17  Amer.  &  Eng.  Ency.  Law  442-3. 


112       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  124 

plated  by  the  parties;1  also,  that  stone  from  a  certain  quarry  were  to  be 
used;2  as  to  how  payments  should  be  made  and  the  place  and  time  of 
delivery  ; 3  as  to  the  meaning  of  the  clause  "  the  entire  walls  of  the  build- 
ing inside  and  outside  are  to  be  painted  "  when  it  is  claimed  and  denied  that 
the  plastering  as  well  as  woodwork  is  to  be  painted  ; 4  to  determine  how 
many  cubic  feet  (16  or  25)  constitute  a  perch  of  stone  in  a  contract.  In  the 
the  absence  of  a  statute  defining  a  perch,  it  may  be  shown  that  it  was 
yerbally  agreed  at  the  time  of  the  negotiations  that  the  work  was  to  be 
performed  at  18  cents  per  cubic  foot  and  that  the  party  who  wrote  the  con- 
tract reduced  it  to  $4.50  per  perch  of  25  feet ;  such  evidence  was  held  not 
to  vary  the  contract,  but  to  enable  the  court  to  interpret  it  in  the  sense 
intended  by  the  parties.5 

Likewise,  oral  evidence  has  been  admitted  to  show  what  was  intended  by 
the  words  "  at  the  price  of  two  dollars  per  thousand;  "  '  "  hewn  timber  to 
average  120  ft.  and  to  class  B,  No.  1  Good";  "at  a  price  per  mile  of 
road  whether  or  not  the  side  tracks  were  to  be  measured  as  road"; 7  "to 
make  up  the  track  in  good  running  order,  well  surfaced,  ties  evenly  and 
firmly  bedded,  etc." — whether  or  no  this  required  the  contractor  to  fill  in  the 
space  between  the  ties  with  earth  or  other  proper  substance.8 

In  general,  parol  evidence  is  admissible  to  show  a  different  or  some 
other  consideration  than  that  named  in  the  written  contract  if  it  be  con- 
sistent with  that  which  is  expressed  and  does  not  defeat  the  legal  operation 
of  the  instrument.9  When  the  consideration  named  in  a  deed  is  money,  it 
may  be  shown  that  the  consideration  was  in  fact  land  of  the  value  named,  or 
that  it  was  marriage,10  or  a  promise  to  do  something.11  Parol  evidence  has 
been  held  admissible  to  show  in  what  manner  the  consideration  was  to  be 
paid,  and  to  show  a  distinct  and  collateral  agreement  which  is  not  a  part  of 
the  contract  embraced  in  writing.12 

In  every  case  it  should  be  held  in  mind  that  the  parol  evidence  must 
not  be  inconsistent  with  the  written  terms  of  the  contract.  It  cannot  alter, 
yary,  add  to,  nor  contradict  the  written  contract.  The  evidence  must  not 
change  the  intention  of  the  parties  as  expressed  in  the  written  instrument, 
but  it  may  complete  it  or  explain  it. 

124.  Parol  Evidence  to  Explain  Obscure  and  Ambiguous  Contracts.— 
Contracts  obscure  or  ambiguous  may  be  made  clear  and  the  intention  of 

1  Donlin  v.  Daeglin,  80  111.  608  [18751.  7  Barker  v.  Troy,  etc.,  B.  Co.,  27  Vt.  766. 

2  Centenary  Church  v.  Cline  (Pa.),  9  Atl.          8  Western  Union  R.  Co.  v.  Smith,  75  111. 
Rep.  163  [1887].  496  [1874]. 

3 17    Amer.    &  Eng.   Ency.   Law  436;  9  Wood  v.  Moriarity  (R.  I.),  9  Atl.  Rep. 

Duplanty  v.    Stokes  "(Mich.),    61   N.   W.  427,  17  Amer.  &  Eng.  Ency.  Law  438. 

Rep.  1015.  10  Tolman  a.Wavd,  86  Me.  303  ;  Miller  v. 

4  Season  v.  Kurz  (Wis.),  29  N.  W.  Rep.  McCay,  50  Mo.  214. 

230.  11  Twomey  v.  Crowley,  137  Mass.  184. 

5  Quarry  Co.  «.  Clement,  38  Ohio  St.  587.          12  Note,  Bolles  v.  Sach  (Minn.),  33  N.W. 

6  Smith  v.  Aiken,  75  Ala.  209.  Rep.  862  [1887],  cases  cited. 


§  125.]  LAW  OF  CONTRACTS.  113 

the  parties  brought  to  light  by  oral  evidence  of  the  surrounding  circum- 
stances, the  situation  of  the  parties,  the  subject-matter,  the  acts,  and  even 
the  conversation  of  the  parties  under  it.1 

Whatever  the  nature  of  the  writing,  the  object  is  to  discover  the  inten- 
tion of  the  parties  as  shown  by  the  words  they  have  used.  To  this  end  the 
€ourt  may  put  itself  in  the  position  of  the  parties  and  view  the  surround- 
ing circumstances,  to  see  how  the  terms  of  the  contract  apply  to  the 
subject-matter  of  the  contract.2  Therefore,  under  a  contract  for  employ- 
ment of  an  engineer  which  is  not  clear  as  to  the  length  of  the  term  of 
service,  or  the  salary  to  be  received,  or  the  kind  of  work  to  be  undertaken, 
oral  evidence  is  admissible  to  show  the  situation  of  the  parties  at  the  time 
the  contract  was  entered  into,  the  surrounding  circumstances — what  posi- 
tion the  employee  gave  up  to  accept  the  employment,  what  duties  his 
predecessor  had  been  required  to  perform,  etc.3 

Evidence  of  the  acts,  conduct,  and  declarations  of  the  parties  may  be 
given  to  show  their  understanding  and  practical  interpretation  of  contract 
when  the  language  used  by  them  is  indefinite  and  obscure.4  Evidence  of 
such  subsequent  statements  and  conduct  are  only  competent  to  show  the 
parties'  understanding  of  it,  and  do  not  change  its  express  terms.5  The 
conduct  has  no  doubt  a  great,  if  not  controlling,  weight  in  the  interpreta- 
tion of  a  contract,8  but  the  statements  and  declarations  of  the  parties  are 
often  excluded  altogether,  whether  made  before,  at  the  time  of,  or  after  the 
•execution  of  the  contract.7  Where  a  telegram  and  subsequent  letters  are  a 
part  of  the  negotiations  which  led  up  to  a  contract  for  the  purchase  of 
goods,  they  are  to  be  construed  together  in  determining  the  terms  of  sale.8 

125.  Parties  may  be  Held  to  the  Construction  they  have  Themselves 
Adopted. — Evidence  may  be  received  of  the  construction  put  upon  previous 
contracts  of  the  same  general  character  by  the  parties  by  their  actions;9 
and  a  subsequent  contract  with  regard  to  the  same  subject-matter  is 
admissible  to  show  how  the  parties  understood  the  earlier  contract.10  The 
construction  of  a  contract  adopted  by  parties  will  prevail.11  A  promise  of 

1  Caperton's  Adm'rs  <o.  Caperton's  Heirs      there  is  ambiguity.   Davis  v.  Shafer,  supra. 
(W.  Va.),  15  S.  E.  Rep.  257.  6  White  v.  Amsden  (Vt.),    30  Atl.  Rep. 

2  Shrewsbury  v.  Tnffts  (W.  Va.),  23  S.  E.       972. 

Hep.  692.  7  Scraggs  «.  Hill  (W.  Va,).  17  S.  E.  Rep. 

3  Excelsior  Needle  Co.  v.  Smith,  61  Conn.  185;  Garnsey  v.  Rhodes,  18  N.  Y.  Supp. 
56  [1892];  Marion  School  Tp.  v.  Carpenter  484  [1892];  'but  see  Cunningham  v.  M.  S. 
(Ind.),    39    N.    E.    Rep.  878;    Rogers  0.  &  Ft.  C.  R.  Co.,  where  evidence  of  conversa- 
IStraab,  26  N.  Y.  Supp.  1066;  Rhodes  v.  tion  of  parties  supplemental  to  contract  was 
Cleveland   Roll.   Mill  Co.,   17   Fed.    Rep.  received;  and  see  Hart  v.  Thompson  (Sup.), 
406.  41  N.  Y.  Supp.  909. 

4  11  Amer.  &  Eng.  Ency.  Law  578:  Davis  8  Joseph  ®.  Richardson,  2  Pa.  Super.  Ct. 
v.  Shafer  (Cir.  Ct.),  50  Fed.  Rep  764;  En-  Rep  208. 

gel  v  Scott  &  Co.  (Minn.),  61  N.  W.  Rep.  9  People's  Natl.    Gas  Co.   v.  Braddock 

825;  Leavers  v.  Clearly,  75  111.  349  [1874];  Wire  Co.,  25  Atl.  Rep.  749. 

Lyon  v.  Motley,  30  N.  Y.  Supp.  218.  10  Brewster  <o.  Bates,  30  N.Y.  Supp.  780. 

'5  Potter  v.  Phoenix  Ins.  Co.  (C.  C.),  63  n  Rose  v.  Eclipse  Carb.  Co.,  60 Mo.  App- 

Fed  Rep.  382.     It  is  admissible  only  when  28. 


114      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§ 

marriage  may  be  inferred  from  the  acts  and  conduct  of  the  parties 
towards  each  other.1  A  defective  description  of  a  boundary  may  be  inter- 
preted by  evidence  of  the  practical  construction  the  parties  put  upon  it 
themselves.2  The  acts  of  the  parties  may  be  shown  to  indicate  whether 
side-tracks  were  to  be  computed  as  road  under  a  contract  at  a  price  per  mile 
of  road.3 

When  there  is  a  dispute  as  to  which  of  two  contracts  is  binding,  the 
parties  may  be  bound  by  the  one  they  have  adopted.  Thus  when  the  con- 
tractor insisted  that  the  contract  consisted  of  proposals  duly  accepted,  and 
the  company  claimed  that  the  contract  was  an  unsigned  written  construc- 
tion contract  by  whose  terms  the  work  had  been  performed,  it  was  held 
that  the  written  contract  should  hold.4 

The  rules  that  a  court  in  construing  a  doubtful  provision  of  a  contract 
will  follow  the  interpretation  placed  upon  it  by  the  parties  does  not  apply 
to  contracts  made  by  a  municipal  corporation  in  matters  affecting  the 
public  interests;0  and  when  a  board  of  commissioners  has  entered  in  their 
proceedings  a  contract,  it  is  not  error  to  exclude  parol  evidence  of  their 
version  of  it.6 

Testimony  that  the  stipulations  of  a  contract  were  the  same  as  those  on 
a  block  of  printed  forms  from  which  it  had  been  taken,  is  inadmissible 
unless  it  is  shown  that  the  witness  compared  the  contract  form  with  those 
in  the  block.7 

126.  Witnesses  Cannot  Testify  as  to  the  Meaning  of  a  Contract. — A 
witness  cannot  testify  touching  the  construction  of  a  contract;  if  a  ques- 
tion arise  as  to  its  meaning,  the  question  must  be  settled  by  the  court.8 
Evidence  of  the  opinion  of  the  parties  to  a  contract  as  to  its  meaning,  not 
carried  into  effect  by  any  act,  will  not  govern  its  interpretation.9  Parol 
evidence  is  admissible  to  prove  the  existence  of  a  written  instrument,  na 
attempt  being  made  to  prove  the  contents  thereof.10 

When  there  is  a  dispute  between  the  parties  as  to  whether  the  contract 
was  verbal  or  in  writing,  and  the  evidence  is  conflicting  as  to  whether  the 
contract  was  verbal  or  in  writing,  the  question  is  for  the  jury.11  The  con- 
struction of  an  ambiguous  written  contract  is  for  the  jury,  and  a  charge  as 
to  its  meaning  is  error."  Where  there  is  no  ambiguity  in  the  terms  of  a 

1  Button  v.    Hibbard  (Sup.),  31   N.  Y.          7  International  &  G.  N.  R.  Co.  v.  Startz 
Supp.  483;  but  see  Yale  v.  Curtiss,  N.  Y.       (Tex.\  27  S.  W.  Rep.  759. 

Ct.  of  App.,  Feb.  1897.  8  The  Alton,  etc.,  R.  Co.  v.  Northcott, 

2  Kingsland  v.  Mayor,  etc.,  of  N.  Y.,  45      15  111.  49  [1858]. 

Him  (N.  Y.),  198.  9  Shaw  v.  Andrews  (C.  C.),  62  Fed.  Rep. 

3  Barker  v.  Troy,  etc. ,  R.  Co. ,  37  Vt.  766.  460. 

4  Megrath  «.  Gilmore  (Wash.),  39  Pac.  10Sims«j.  Jones  (S.  C.),  20  S.  E.  Rep.  905. 
Rep.  131;  and  see  Mobile  &  B.  Ry.  Co.  v.  »  Jones  v.  Sherman   (Neb.),  51  N.  W. 
Northington  (Ala.),  10  So.  Rep.  839  [1892].  Rep.  1036. 

6  National  Waterworks  Co.  v.  School  12  Ginnuth  v.  Blankenship  &  Blake  Co. 

Dist.  No.  7  (Cir.  Ct.),  48  Fed.  Rep.  523.  (Tex.  Civ.  App.),  28  S.*W.  Rep.  828;  Bloom 

6  Board  v.  O'Conner  (Ind.),  35  N.  E.  Rep.  v.  P  Cox  Shoe  Manfg.  Co.  (Supp  ),  31 

1006.  N.  Y.  Supp.  517. 


§  129.]  LAW  OF  CONTRACTS.  115 

contract,  it  is  the  province  of  the  court,  and  not  of  the  jury,  to  determine 
its  meaning,1  and  where  the  terms  are  ascertained  its  meaning  presents  a 
question  of  law  only,  and  it  is  for  court.2 

It  is  the  duty  of  the  court  to  construe  and  determine  the  legal  effect  of 
a  written  instrument  offered  in  evidence  and  to  instruct  the  jury  thereon,3 
and  there  is  no  ambiguity  or  conflict  if  the  intention  of  the  parties  to  a 
written  contract  be  intelligible  upon  the  face  of  the  instrument.  Outside 
proof  of  its  meaning  is  not  admissible, — its  construction  is  for  the  court 
alone.4  Whether  certain  correspondence  constitutes  a  contract,  and  its 
proper  construction  as  such,  are  for  the  court.6 

127.  The  Intention  of  Parties  should  Control. — In  the  construction  of 
instruments  or  contracts  the  first  rule  to  be  regarded  is  to  follow  the  inten- 
tion of  the  parties  as  gathered  from  the  entire  transaction,  and  by  looking 
at  all  the  provisions  of  the  instrument,  and  not  one  alone. 

All  other  rules  are  subordinate  to  this  one,  and  when  they  contravene  it 
they  are  to  be  disregarded.  If  the  language  of  the  contract  is  plain  and 
unambiguous,  parol  evidence  is  not  allowable  to  ascertain  the  pretext  of  the 
parties  thereto.  If  it  admits  of  more  senses  than  one,  it  is  to  be  interpreted 
in  the  sense  in  which  the  promisor  had  reason  to  suppose  it  was  understood 
by  the  promisee.8  If  the  terms  of  the  written  contract  admit  of  two  mean- 
ings, one  of  which  nullifies  the  contract  and  the  other  upholds  it,  the  latter 
will  be  adopted  and  the  former  must  be  discarded.7 

128.  Rule  against  Parol  Evidence  Applies  Only  in  Suits  between  the 
Parties  to  Contract. — The  rule  that  parol  evidence  cannot  be  given  to  con- 
tradict or  vary  written  agreements  is  limited  to  the  parties  actually  con- 
tracting with  each  other  by  the  agreement.    It  cannot  be  evoked  by  a  stranger 
to  a  contract.8     It  is  not  excluded  in  suits  between  strangers  to  the  written 
contract,  and  a  surety  has  been  held  such  a  stranger.9     Therefore  parol  evi- 
dence is  admissible  to  establish  a  contract  between  a  broker  and  his  principal 
though  it  may  contradict  or  vary  the  terms  of  a  written  contract  entered 
into  in  pursuance  thereof  between  the  principal  and   the  proposed   pur- 
chaser.10 

129.  Contracts  Obtained  by  Fraud  or  Duress. — Exceptions  to  the  rule 

1  Levy  v.  Kottman  (Com.  PI.),  32  K  Y.  5  Scanlan  v.  Hodges  (C.  C.  A.),  52  Fed. 
Supp.  241.  Rep.  854. 

2  Finlayson  v.  Wiman  (Sup.),  32  N.  Y.  6  Potter  v.  Berthelet,  20  Fed.  Rep.  240 
Supp.  347.  [1884];  Root  etal.  v.  Johnson,  26  Vt.  64. 

3  Bell  v.  Keepers  (Kans.),  14  Pac.  Rep.  7  Saimdersa.  Clark,  29  Cal.  299. 

542  [1887];  Fidelity  Title  &  Trust  Co.  v.  8  Coleman  v.  Bank  of  Elmira,  53  N.  Y. 

People's  Gas  Co.  (Pa.),  24  Atl.  Rep.  339;  388  [1873];  First  Nat.  Bank  v.  Dunn  (N. 

Barnhill  v.  Howard  (Ala.),  16  So.  Rep.  1;  J.),  27  Atl.  Rep.  908. 

Woodburg  G.  Co.  v.  Mullikin  (Vt.),    30  9 17  Amer.  &  Eng.  Ency.  Law  454;  Cole- 

Atl.  Rep.  28.  man   v.  Bank  of  Elmira,  53  N.   Y.    388 

4  Campbell  v.  Jimenes  (Com.  PI.),   23  [1873]. 

N.  Y.  Supp.  333.  1°  Barber  «.  Hildebrand  (Neb.),  60  N.  W. 

Rep.  594. 


116      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  129. 

forbidding  parol  evidence  are  those  cases  where  the  validity  of  the  written 
instrument  is  impeached  as  having  been  obtained  by  duress,  menace,  fraud; 
or  collusion,  which,  as  is  well  known,  vitiate  all  acts  however  solemn  or 
even  judicial.  To  reject  parol  evidence  in  such  case,s  would  afford  protection 
to  practices  which  it  is  the  object  of  the  law  to  suppress.  A  party  cannot 
avoid  it  by  setting  up  his  own  fraud,  nor  can  other  persons  claiming  under 
him.1 

If  a  contract  is  attacked  on  the  ground  of  fraud,  parol  evidence  is  admis- 
sible to  show  the  fraud.3  There  must  be  an  allegation  of  duress,  collusion, 
fraud,  misrepresentation,  or  mistake,  or  the  evidence  must  be  offered  to 
prove  the  same.3  In  the  absence  of  such  allegation,  parol  evidence  will  not 
be  admitted  even  in  a  court  of  equity.4  Therefore  a  contract  for  the  sale  of 
land  cannot  be  varied  by  prior  or  concurrent  verbal  agreement  as  to  what  the 
settler  would  do  in  consideration  of  the  purchase;6  nor  when  subscriptions 
have  been  made  to  a  common  project,  and  the  parties  soliciting  the  subscrip- 
tions have  made  parol  representations  to  the  effect  "  that  men  of  great 
wealth  will  be  connected  with  the  enterprise,  that  great  benefit,  collateral 
improvements,  and  enhancement  of  the  value  of  real  estate  will  result,6  or 
"that  certain  materials  will  be  used  in  the  building;"7  or  "that  the  rail- 
road to  be  built  should  connect  with  other  railroads,"  though  the  route  and 
termini  might  be  shown.8  So  in  a  lease  it  cannot  be  shown  that  the  land- 
lord made  an  agreement  at  the  time  it  was  executed  to  make  improvements,9 
or  that,  under  a  lease  that  was  to  be  null  and  void  and  not  binding  on  either 
party  if  the  lessee  failed  to  pay  his  rent,  it  was  intended  to  give  the  lessee 
an  option  to  terminate  the  lease  at  his  pleasure.10 

If  the  purchaser  had  alleged  fraud,  misrepresentation,  or  deceit,  a  court 
of  equity  would  doubtless  have  admitted  the  evidence,  as  was  done  in  a  case 
where  a  tenant  signed  a  lease  of  a  farm  upon  the  faith  of  the  owner's  parol 
promise  to  destroy  the  rabbits  infesting  it;11  and  in  another  case  where  an 
inventor  as  an  expert  made  false  representations  to  a  purchaser  as  to  the 
value,  merits,  and  utility  of  an  invention.12  There  are  cases  to  the  contrary 
where  misrepresentations  as  to  the  validity,  value  and  utility  are  held  mere 
matters  of  opinion 1S  and  therefore  not  fraudulent.  Representations  as  to 

1  Best's  Principles  of  Evidence.    (Cham-         '  Gerner  v.   Church  (Neb.),   62  N.   W. 
berlayne's  ed.)  235.     See  Epigraph,  Title     Rep.  51. 

page.  8Low  v.  Studebaker  (Ind.),   10  N.   E. 

2  Grand  Tower,  etc.,  R.  Co.  •».  Walton     Rep.  801  [1887]. 

(111.),  37  N.  E.  Rep.  920.  »  Lerch  v.  Sioux  City  Time  Co.  (la.),  60 

3Deloache  v.  Smith  (Ga.),  10  S.  E.  Rep.  K  W.  Rep.  611. 

436;   Strong.®.  Waters,  30  N.   Y.    Supp.  10  Hall  v.  Phillips  (Pa.),  30  Atl.  Rep.353. 

64.  n  Morgan  v.  Griffith,  L.  R.  6  Exch.  70 

4Brunson    v.    Henry   (Ind.),    39  N.    E.  [1871]. 

Rep  256;  Groome  v.  Ogden  City  (Utah),  "Hicks  75.  Stevens  (111.).  11  N.  E.  Rep. 
37  Pac.  Rep.  90;  Custean  v.  St.  Louis  Land  241  [1887].  And  see  note,  Best's  Chamber- 
Co.  (Wis.),  60  N.  W.  Rep.  425.  layne's  Prin.  of  Evidence  230;  Iowa  Eco- 

5  Custean  v.  St.  Louis  Land  Co.  (Wis.),  60  nomic  Heater  Co.  v.  American,  etc.,  Co., 

N.  W.  Rep.  425.  32  Fed.  Rep.  735. 

•  Poddock  v.  Bartlett,  68  Iowa  16  [1885].  1S  8  Amer.  &  Eug.  Ency.  Law  636. 


§  130.]  LAW  OF  CONTRACTS.  117 

facts  on  which  the  valuation,  merits,  etc.,  are  based  are  fraudulent  if 
false.1 

Misrepresentations  by  a  nonexpert  as  to  the  legality  of  an  instrument  or 
the  legal  effect  of  it  are  not  in  general  regarded  as  fraudulent  so  as  to 
relieve  one  from  the  obligation  assumed  on  the  strength  of  such  allegation.1 

If  one  is  induced  to  sign  a  lease  by  false  statements  by  the  owner  that 
the  building  leased  is  fit  for  certain  purposes,  evidence  of  the  misrepresen- 
tation may  be  received.2  So  when  it  is  alleged  that  certain  stipulations  and 
provisions  were  inserted  in  a  contract  by  fraud,  evidence  of  prior  conversa- 
tions between  the  parties  is  admissible.3  In  general,  when  it  can  be  shown 
clearly  and  undoubtedly  that  certain  oral  representations,  undertakings,  and 
promises,  material  to  the  subject-matter  of  a  written  contract,  induced  one 
of  the  parties  to  put  his  name  to  it,  they  may  be  shown  by  parol  evidence, 
and  the  written  agreement  may  be  modified,  explained,  reformed,  or  alto- 
gether set  aside  by  such  parol  evidence.4  Such  a  case  is  a  subscription  con- 
tract in  which  it  was  falsely  represented  that  another  person  named  had 
made  a  similar  subscription  under  the  same  conditions.5 

130.  Independent  Oral  Agreements. — It  must  not  be  taken  that  the  rule 
against  showing  a  prior  or  contemporaneous  parol  agreement  forbids  parties 
making  separate  written  and  parol  contracts  at  the  same  time  and  as  to  the 
same  subject-matter.  Any  number  of  independent  contracts  each  having  its 
own  proper  consideration  may  be  made,  some  parol  and  others  written,  and 
the  parol  contracts  may  modify,  explain,  vary,  contradict,  or  multiply  the 
written  ones.  The  parol  agreement  may  form  part  of  the  consideration 
of  the  written  contract,  or  the  written  contract  may  form  the  considera- 
tion for  the  contemporaneous  parol  agreement,  if  the  oral  agreement  is 
not  inconsistent  with  the  written  agreement,  and  if  there  is  evidence 
that  the  parties  did  not  intend  the  written  contract  to  be  a  complete  trans- 
action. 

When  oral  agreements  are  made  at  the  time  written  contracts  are  entered 
into,  then  they  should  rest  upon  a  separate  and  distinct  consideration;  and 
when  they  have  been  arrived  at  they  should  be  regarded  as  distinct  and  col- 
lateral agreements,  and  not  a  part  of  the  written  contract.  Parol  evidence 
will  be  admitted  of  an  oral  agreement  entered  into  subsequent  to  the  writ- 
ten contract  if  the  oral  contract  is  supported  by  a  new  consideration,  and  the 
new  parol  agreement  may  become  a  substitute  for  the  old  one,  or  be  an 
addition  to  it.  If  the  new  oral  agreement  has  taken  the  place  of  an  earlier 
written  contract  which  has  been  lost,  oral  evidence  may  also  be  received  t» 
prove  the  terms  of  the  written  contract. 

A   parol  modification  of  the  terms  of  a  written  contract,   which  was 

1  8  Amer.  &  Eng.  Ency.  Law  636.  4Thudium  v.  Yost  (Pa.),  11  Ail.  Rep. 

2  Myers  ®.  Rosenbach,  25  N.  Y.  Supp.  521.      436. 

3VanAlstyne0.  Smith,  31  N.  Y.  Supp.          5  Gerner  «.    Church  (Neb.),   62  N.  W. 
277.  Rep.  51. 


118     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE    [§  131. 

required  to  be  in  writing  by  the  statute  of  frauds,  cannot  be  shown  in  con- 
nection with  the  written  contract. 

An  interesting  case,  illustrating  this  rule,  was  a  written  contract  for  the 
sale  of  real  estate.  One  of  the  provisions  was,  that  a  certain  person  should 
survey  the  land.  The  services  of  this  particular  surveyor  not  being  obtain- 
able, a  verbal  agreement  was  made  to  procure  another,  who  surveyed  the  land, 
after  which  the  grantor  refused  to  convey  the  premises.  In  an  action  for 
the  breach  of  the  written  contract  it  was  held  that  the  verbal  alteration 
could  not  be  shown,  because  such  alteration  reduced  the  whole  written  con- 
tract to  a  mere  verbal  agreement  for  the  sale  of  lands,  upon  which  the  stat- 
ute of  frauds  provides  that  no  action  can  be  maintained.1  However,  this 
does  not  hold  that  certain  terms  of  a  written  contract  cannot  be  waived  by 
parol  agreement.2  * 

Oral  evidence  is  admissible  to  show  that  the  time  of  performance  or 
completion  was  extended  or  the  date  changed  by  a  subsequent  agreement, 
whether  the  contract  be  sealed  or  unsealed,  or  even  within  or  without  the 
statute  of  frauds,3  and  it  may  be  shown  that  the  terms  of  a  written  con- 
tract, even  one  within  the  statute  of  frauds,  have  been  waived  or  dis- 
charged.4 

131.  Subsequent  Promises  must  be  Founded  upon  a  Consideration.  —  A 
consideration  without  doubt  is  necessary  to  support  such  contracts  to  modify 
or  rescind  a  written  contract,5  but  it  is  not  to  be  understood  that  by  consid- 
eration is  meant  a  money  consideration.  The  court  will,  if  possible,  find  a 
consideration  to  support  promises  for  extra  work,  extension  of  time,  changes 
in  the  plans,  specifications,  etc.  If  there  have  been  changes  by  the  owner, 
these  may  afford  sufficient  consideration  for  an  extension  of  time,  or  for 
extra  remuneration,  even  though  the  expense  has  not  been  increased.  If 
the  contractor  has  found  the  work  more  difficult  than  he  anticipated,  it  is 
an  easy  matter  for  him  to  allege  misrepresentation  on  the  part  of  the  owner 
or  his  engineer  or  architect,  and  "  trump  up  "  a  claim  which,  however  triv- 
ial, may  afford  a  consideration  for  a  new  agreement  on  the  part  of  the 
owner,  it  being  impossible  for  the  court  to  ascertain  how  sincere  he  may  have 
been  in  his  claims  or  what  value  it  may  have  had  at  the  time.6  So  when 
a  building  fell  before  it  was  completed,  it  being  disputed  as  to  whether  it 
was  the  contractor's  or  owner's  fault,  it  was  held  that  the  question  of  doubt- 
ful liability  was  a  sufficient  consideration  to  support  a  new  promise  by  the 
owner.7  f 

1  Dana  v.  Henry,  30  Vt.  616  [18581.  444. 

Hill  v.  Blake,  97  K  Y.  216;  17  Amer.          •  Hart  v.   Launraan,    29  Barb.  (N.  Y.) 


&  Eng.  Ency.  Law  448.  410;  Osborne  v.  O'Reilly,  supra;  Holmes 

;  Wilgus  ». 
art  v.  Ogden,  etc.,  30  Cal.  547;  Morrill  v.      head,  6  W.  N.  of  C.  537;  Cooke  «.  Mur- 


3  17  Amer.  &  Eng.  Ency.  Law  449;  Luck-      •».  Doane,  9  Gush.  135;  Wilgus  ».  White- 


Colehour,  82  111.  618.  phy.  70  111.  96  [1873]. 

4  17  Amer.  &  Eng.  Ency.  Law  449.  7  Brodeck  v.   Farnum  (Wash.  ),  40  Pac. 

6  Bruce  v.  Brown  (Tex.),  25  S.  W.  Rep.  Rep.  183. 

*  See  Sees.  559-564,  infra.  t  See  Sec.  563,  infra. 


§  131.]  LAW  OF  CONTRACTS.  119 

Where  a  contractor  was  under  a  penalty  (liquidated  damages),  to  com- 
plete work,  it  was  held  that  under  a  release  of  the  contractor  from  the  con- 
tract, a  promise  to  pay  for  day  labor,  by  the  owner,  was  supported  by  the 
fact  that  the  contractors  could  have  abandoned  the  contract  by  paying  the 
penalty,  and  they  had  incurred  a  detriment  by  keeping  at  work,  which  they 
were  not  obliged  to  do. 

The  consideration  may  be  found  in  the  mutual  promise  to  annul  certain 
terms  or  to  rescind  the  whole  agreement  and  to  then  enter  into  a  new  parol 
agreement,  the  agreements  on  the  one  side  to  rescind  being  the  considera- 
tion for  the  agreement  to  rescind  and  the  new  undertakings  on  the  other 
side.  That  no  new  and  extraneous  consideration  is  necessary  in  ordinary 
construction  contracts  has  been  frequently  held,*  though  there  are  cases  to 
the  contrary. 

*  See  Sees.  69,  supra,  and  560-563,  infra. 


PART  II. 

BIDS  AND  BIDDERS. 


CHAPTER  VI. 
THE  RIGHTS  AND  LIABILITIES  OF  BIDDERS  FOR  PUBLIC  WORK. 

THE    ADVERTISEMENT,    INSTRUCTION    TO    BIDDERS,    AND    FORMS    FOR    PRO- 
POSALS.     FORMALITIES,    REQUIREMENTS,    AND    RESTRICTIONS    IMPOSED    ON 

BIDDERS. 

132.  Mode  of  Entering  into  Construction  Contracts. — In  treating  the  sub- 
jects of  construction  and  construction  contracts  it  will  not  be  necessary  to 
go  in  to  the  preliminaries  of  organization  of  companies,  or  of  securing  charters, 
or  floating  the  stock.  These  are  affairs  that  usually  have  been  attended  to 
before  the  engineer,  architect,  builder,  and  contractor  are  called  upon  to 
lend  their  assistance.  When  the  company  has  been  created  and  the  privi- 
leges, permits,  grants,  or  franchises  have  been  obtained,  it  is  then  that  the 
services  of  the  industrial  element  are  sought.* 

When  an  owner  or  company  contemplates  the  erection  of  works  large 
enough  to  require  the  services  of  an  experienced  and  skilled  mechanic,  it  is 
a  general  practice  in  this  country  to  invite  contractors  to  make  offers. or 
proposals  to  do  the  work  required  at  a  price  named.  The  invitations  are 
something  private,  and  sent  to  such  persons  only  as  the  owner  or  company 
may  desire  to  do  business  with ;  or  they  may  take  the  character  of  public 
solicitations,  or  advertisements  for  proposals. 

The  instructions,  explanations,  and  statements  of  the  terms  and  specifi- 
cations attending  such  negotiations  are  frequently  of  considerable  impor- 
tance and  compass,  which  parties  to  the  contract  and  their  agents  should 
understand.  The  acts  and  ceremonies  attending  these  negotiations  arise 
from  the  desire  of  the  owner  or  proprietor  to  retain  the  privilege  of  creating 
and  completing  the  contract. 

The  letting  of  a  large  construction  contract  does  not  differ  greatly  in 

*The  engaging  and  retaining  of  the  professional  services  of  the  engineer  or 
architect,  and  the  relations  and  duties  created  by  their  contract  of  employment,  will  be 
discussed  in  a  later  chapter.  See  Part  IV.,  Sees.  800-900,  infra. 

120 


§  132.]  BIDS  AND  BIDDERS.  121 

principle  from  the  bartering  and  selling  of  every-day  life.  Before  two- 
parties  can  enter  into  a  contract  they  must  come  to  terms,  that  is,  they  must 
have  a  common  understanding  of  the  terms  of  their  agreement.*  This  is 
essential  to  a  binding  contract.  The  usual  way  of  entering  into  a  contract 
is  by  one  party  stating  certain  terms  and  the  other  party  assenting,  both 
parties  agreeing  to  be  bound  by  those  terms.  The  formal  declaration  of  an 
agreement  to  abide  by  the  terms  proposed  is  not  necessary.  When  the 
statement  of  terms  takes  the  form  of  an  offer,  and  the  assent  that  of  an 
acceptance  of  those  terms  as  made,  within  a  reasonable  time  or  before  the- 
oiler  is  recalled,  such  offer  and  acceptance  constitute'  a  binding  contract. 
This  fact,  that  a  contract  can  be  created  by  the  simple  act  of  accepting  an 
offer,  has  been  a  prime  factor  in  establishing  the  ceremonies  that  precede  the 
execution  of  a  construction  contract.  Neither  the  proprietor  nor  the  con- 
tractor, the  seller  nor  the  buyer,  desires  to  make  the  initial  offer.  Each 
wants  to  make  an  agreement  or  bargain  which  is  tot  his  best  interest,  and 
whoever  makes  the  offer  sacrifices  his  chance  of  getting  anything  better 
than  he  himself  has  offered.  If  his  offer  is  accepted,  the  contract  is  com- 
pleted; while  the  party  to  whom  the  offer  was  made  may  decline  and  solicit 
other  offers.  In  every-day  business  affairs  this  gives  rise  to  fencing  and 
sounding  to  determine  who  shall  commit  himself  to  the  terms  of  an  offer. 
If  it  be  a  horse  to  sell,  the  seller  will  want  the  purchaser  to  make- 
him  an  offer,  and  the  buyer  will  want  the  seller  to  name  a  price.  The 
buyer  wants  to  buy  at  the  lowest  price,  and  he  knows  that  if  he 
make  an  offer  it  may  be  accepted,  which  closes  the  bargain,  and  he  may  have 
paid  more  than  he  need  to  have  paid  had  he  known  the  mind  of  the  seller. 
The  same  principle  prevails  in  larger  transactions,  but  there  are  several 
bidders  usually  for  each  contract.  Proprietors  having  work  to  be  performed 
insist  upon  receiving  offers  instead  of  making  them.  This  is  eminently 
just,  for  it  requires  the  party  to  prepare  and  make  the  offer  who  is  best 
qualified  to  undertake  it.  A  skilled  mechanic  with  a  large  experience  in 
contracting  and  building  can  certainly  better  determine  the  proper  cost  of 
an  undertaking,  and  should  therefore  be  the  one  to  offer  terms  by  which  he 
will  undertake  the  execution  of  a  contract  for  such  work.  Under  these  con- 
ditions the  present  system  of  inviting  proposals  has  become  universal.  Pro- 
prietors and  corporations  having  work  to  be  done  have  found  it  to  their 
advantage  to  insist  that  it  is  their  just  privilege  to  invite  offers  or  proposals, 
not  from  one  contractor  but  from  several. 

By  announcing  that  several  proposals  will  be  received,  and  that  the  pro- 
posal will  be  accepted  which  is  most  advantageous  to  the  proprietor,  con^ 
tractors  desirous  of  securing  the  work  are  induced  to  make  close  estimates 
and  thus  give  to  the  party  inviting  the  offers  the"  benefit  of  competition. 
The  contracts  for  all  private  works  of  importance,  and  for  nearly  all  public 

*  See  Sees.  88-98,  supra. 


122     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  133. 

works  are  entered  into  only  after  these  preliminary  negotiations.  The  invi- 
tations to  make  offers  is  called  the  advertisement  for  proposals;  the  offer 
itself  is  called  the  proposal,  tender,  or  bid;  the  acceptance  of  the  offer  is  the 
mvarding  of  the  contract,  and  the  completion  of  the  ceremony. 

The  fact  that  a  proposal  or  bid  is  but  an  offer  should  not  be  lost  sight  of 
however  much  it  is  enshrouded  with  instructions,  restrictions,  and  condi- 
tions, and  that  the  advertisement  is  not  in  general  an  offer,  but  an  invita- 
tion to  contractors  or  builders  to  make  offers.1 

The  act  or  charter  of  many  public  organizations  requires  that  the  work 
be  advertised  and  proposals  solicited  from  the  public. 

The  advantages  of  this  system  of  letting  work  are  twofold.  (1)  If 
honestly  carried  out  by  both  parties/it  gives  to  the  owner  the  benefit  of  close 
-competition,  and  (2)  the  privilege  of  accepting  the  proposal  if  the  offer  is  a 
good  one,  or  of  declining  it  if  it  is  unreasonable.  By  inviting  proposals  the 
owner  retains  the  privilege  of  assuming  the  contract  obligation  to  himself, 
while  the  contractor  in  making  the  proposal  may  have  the  obligation  of  a 
contract  imposed  upon  him  by  the  mere  acceptance  by  the  owner  of  his 
offer  in  the  same  terms  in  which  it  was  made.  An  offer  plus  an  acceptance 
makes  a  contract,  the  obligation  of  which  cannot  be  escaped.  An  offer  may 
be  recalled  or  revoked  at  any  time  before  it  is  accepted,  but  not  afterwards. 
To  prevent  bidders  from  recalling  their  offer,  bidders  are  usually  required 
to  accompany  their  proposals  with  a  certified  check,  which  is  forfeited  if  the 
offer  is  revoked. 

The  advantage  of  competitive  bids  for  work  cannot  be  overestimated  if 
they  are  honestly  made  and  the  contract  conscientiously  awarded  to  the 
lowest  responsible  bidder. 

To  get  such  proposals  as  can  be  compared  they  should  one  and  all  be 
made  from  precisely  the  same  data,  and  with  the  same  means  afforded  to 
all  for  observation  and  study.  A  word  or  a  wink  that  tends  to  give  one  con- 
tractor the  advantage  over  another  is  an  evil  practice  that  undermines  the 
whole  system,  and  is  an  injustice  to  the  owner  and  to  all  the  other  bidders.  If 
discovered,  it  affords  a  ground  for  attacking  the  contract  awarded  upon  such 
a  bid,  and  may  result  in  the  contractor  losing  all  that  he  has  earned. 

133.  The  Advertisement  or  Notice  to  Bidders — Invitation  to  Contractors 
and  Builders  to  Make  Proposals. 

IMPKOVEMENT. 

PROPOSALS   FOR  BUILDING 

Engineer's  Office, 

....  Broadway,  New  York  City, 
,  189.. 

"SEALED  BIDS  [OR  PROPOSALS]  for  the  construction  or  erection 
or  for  furnishing  all  the  labor,  tools,  appliances,  etc.,  and  materials 
necessary  to  build,  to  erect,  and  to  do  all  the ,  and  to  com- 

1  Lloyd's  Law  of  Buildings  (3d  ed.),  §  56;  Forster  v.  Ulman,  64  Md.  523. 


§  134.]  BIDS  AND  BIDDERS.  123 

plete  a   Certain ....  [name  of   structure   or   work] . ...  at  OF  OH  .  .  .  .  [name  of  way  or 

stream] ....  in  the  town  or  city  of ,  county  of >  state  of 

,  are  invited,  and  will   be  received  at  the  office  of , 

engineer  or  architect,  or  at  the  office  of  the  Board  of  Commissioners  of 

the  Public  Works,  City  Hall,  city  of ,  state  of ,  until 

o'clock ....  M.  of day  of  the  week the day  of , 

189. .,  at  which  place  and  hour  the  bids  will  be  publicly  opened  and 
read. 

"  The  bids  will  be  compared  on  the  basis  of  the  engineer's  estimate  of 
the  materials  and  work  to  be  done,  which  is  as  follows : 

Items,  [a] [b] [c] ,  etc. 

"  The  work  is  to  be  commenced  within days  after  the  execution  of 

the  contract,  and  to  be  continued  with  regularity  until  completed,  which 
must  be  before  the day  of ,  189 . . 

"  The  amount  of  the  bond  required  for  the  fulfillment  of  the.contract 
will  be  the  sum  of .  .  .thousand  dollars";  or,  "The  security  required  for 
the  fulfillment  of  the  contract  will  be per  cent,  of  the  contract  price." 

"  The  contract  will  be  awarded  to  the  lowest  responsible  bidder  with- 
out reserve";  or,  "The  right  to  reject  [any  and]  all  bids  is  reserved 
if  the  engineer,  architect,  commissioners,  or  board  shall  deem  it  for  the 
best  interests  of  the  company,  city,  or  state. 

"  General  instructions  for  bidders,  blank  forms  for  proposals,  plans  and 
specifications  and  contract  forms,  and  all  other  necessary  information 
may  be  had  [or  obtained]  at  the  office  of  the  engineer  or  architect, 

Street, 

"Signed 

"Dated » 

134.  The  Form  of  Advertisement  to  be  Adopted. — In  adopting  the  forms 
here  presented  for  the  letting  of  construction  contracts  the  author  has 
adopted  what  seems  to  be  a  rational  subdivision,  and  one  that  does  not  depart 
materially  from  established  forms  in  use  on  public  works.  Advertising 
is  expensive,  and  neither  individuals,  companies,  nor  the  government  can 
afford  to  publish  full  and  explicit  instructions  to  bidders  in  the  general  or 
technical  periodicals.  The  advertisement  need,  therefore,  contain  only 
general  information  such  as  shall  enable  a  contractor  to  determine  if  he 
would  like  to  undertake  the  work.  It  should  describe  the  character  of  the 
structure,  work  and  materials  required,  its  location,  the  magnitude  of  the 
undertaking,  when  it  must  be  commenced  and  when  completed,  the  amount 
of  security  required,  whether  or  not  the  lowest  bid  will  be  accepted  without 
reserve,  the  last  day  on  which  the  bid  will  be  received,  where  further  infor- 
mation may  be  secured,  and  who  are  the  parties  that  invite  proposals;  and  if  it 
be  public  work,  the  attention  of  the  bidders  should  be  invited  to  the  act  of 
congress  or  of  the  legislature,  or  to  the  ordinance,  under  which,  or  by  virtue 
of  which,  the  work  is  undertaken  or  authorized  or  by  which  it  is  controlled. 

This  information  is  ample  to  advise  a  contractor  whether  the  job  is 
in  his  line,  whether  it  is  within  his  capacity  as  to  the  execution  of  the  work 
in  the  time  named,  whether  he  can  furnish  bonds  and  has  time  to  make  a 
careful  estimate,  and  finally,  whether  he  will  compete  for  and  undertake 


124    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  135. 

the  work  offered  by  the  parties,  and  under  the  supervision  of  the  engineer  or 
architect  named.  These  facts  determined,  the  contractor  will  apply  for  and 
receive  full  instructions  for  bidders. 

When  the  law  provides  that  the  terms  of  all  contracts  shall,  before  they 
are  entered  into,  be  approved  by  the  board  of  estimate  and  apportionment,, 
and  another  section  provides  that  the  commissioner  shall  have  power  to 
make  contracts  on  certain  conditions,  and  provides  that  he  shall  advertise 
for  proposals  to  perform  the  work  "  in  such  manner  and  on  such  terms  and 
conditions  as  he  may  prescribe,"  the  "  terms  and  conditions  "  referred  to 
in  the  latter  section  are  merely  those  which  the  commissioner  deems  it 
necessary  to  put  in  the  proposals,  and  not  the  terms  and  conditions  of  the 
contract,  but  that  the  terms  and  conditions  of  the  contract  to  be  made  must 
be  approred  by  the  board  of  estimate  and  apportionment.1 

135.  As  Regards  the  Advertisement  or  General  Notice  to  Bidders.— In  the 
absence  of  special  requirements,  boards  of  commissioners  have  authority 
to  designate  the  official  newspaper  in  which  advertisements  and  notices  shall 
be  published,  but  such  designation  cannot  continue  for  a  longer  period  than 
their  term  of  office,  so  as  to  bind  their  successors  in  office.2 

The  requirements  of  a  statute  prescribing  the  mode  and  time  of  advertis- 
ing for  bids  are  mandatory,  the  compliance  with  which  is  a  condition  prece- 
dent to  the  power  of  a  municipality  to  enter  into  a  valid  agreement  in  respect 
thereof.3  If  it  be  required  by  statute,  ordinance,  or  resolution  that  the  adver- 
tisement be  published  in  designated  newspapers,  the  contract  will  be  invalid 
if  it  is  not  published  in  all  such  papers  and  strictly  as  required  by  law  or 
ordinance. 4  It  has  been  held,  however,  that  when  the  statute  requires  work  to- 
be  advertised  in  a  newspaper  for  three  weeks,  but  the  ordinance  of  the  city 
ordering  the  improvement  provides  for  publication  in  two  papers,  that  the 
proceedings  are  not  rendered  invalid  because  it  was  advertised  in  only  one 
newspaper  ; 5  and  a  certificate  of  publication  stating  a  thing  has  been  pub- 
lished "  five  times"  does  not  show  that  the  statute  requiring  it  to  be  pub- 
lished for  five  successive  days  was  complied  with.6  When  the  paper  desig- 
nated suspended  after  three  publications  of  the  four  required,  a  publication 
in  another  paper  for  the  remaining  week  was  held  insufficient ; 7  and  where  the 
designated  official  paper  had  ceased  to  be  the  official  paper  before  the  last 
insertion  of  the  notice,  the  notice  in  it  was  held  insufficient.8  If  it  is  pro- 
vided that  notice  may  be  given  by  posting  in  lieu  of  publication  in  a  news- 
paper, an  insertion  in  a  newspaper  for  a  time  until  the  newspaper  is  sus- 
pended, and  a  posting  for  the  balance  of  the  time,  is  insufficient;9  but  where 

People  v.    Waring    (Sup.),   39  N.  Y.  107;  16  Amer.  &  Ensr.  Ency.  Law  821. 
Supp.  193;  Lynch  v.  Mayor,  etc.,  37  N.  Y.          5  Connersville  v.  Merrill  (lud.  App.),  42 

Supp.  798,  distinguished.  N.  E.  Rep.  1112. 

2  Shelden  v.   Fox  (Kan.),   29  Pac.  Rep.          «  Chandler  v.  People  (111.),  43  N.  E.  Rep. 
759  [1892].  590. 

3  McCloud  i).  City  of  Columbus  (Ohio          7  Townsend  v.  Tallant,  33  Cal.  45. 
Sup.),  44  N.  E.  Rep.  95.  'Basey  v.  Lavitt,  12 Me.  378. 

4  Taylor  v.  Lambertville,  43  N.  J.  Eq.          9Falkner0.  Guild,  10  Wis.  563. 


§  135.]  BIDS  AND  BIDDERS.  125 

the  designated  paper  was  merged  into  another,  taking  the  name  of  the  latter, 
it  was  held  sufficient.1  If  certain  public  officers  are  required  to  designate  the 
papers  in  which  notice  shall  be  published,  and  they  fail  to  do  so,  a  publica- 
tion in  all  the  papers  from  which  they  could  have  selected  is  good.2 

When  an  officer  has  discretion  he  may  designate  a  paper  not  published  in 
the  state.3  If  the  notice  is  to  be  published  in  a  newspaper,  it  should  be  a 
secular  paper  of  general  circulation,  printed  in  the  English  language  and  on 
a  week-day.  If  printed  in  a  supplement  to  a  newspaper,  it  should  have  the 
same  circulation  as  the  newspaper  itself.4  A  mere  advertising-sheet  has  been 
held  not  a  newspaper.5 

The  place  of  publication  is  not  where  a  newspaper  is  printed,  nor  where 
it  is  sent  for  distribution,  but  where  it  is  first  given  to  the  public  for  circu- 
lation.6 A  requirement  that  the  notice  be  inserted  in  a  paper  "  printed  "  in 
the  county  is  not  complied  with  by  inserting  it  in  one  <e  published  "  in 
the  county,  but  "  printed"  elsewhere.7  A  "  city  paper  "  must  be  published 
and  circulated  in  the  city.8 

If  it  is  required  that  printed  notices  be  posted  up,  a  publication  in  a 
paper  is  not  sufficient.'  A  court-house  and  a  schoolhouse  have  been  held 
public  places,  but  it  seems  not  necessarily  (<  conspicuous  "  places.10  If  the 
charter  or  act  require  that  a  notice  be  published  for  a  certain  length  of  time, 
and  the  period  of  publication  is  one  day  short  of  that  required,  it  will 
be  fatal  to  all  subsequent  proceedings.11 

If  the  statute  require  that  the  work  be  advertised  for  a  certain  period 
prior  to  the  letting  of  the  contract  or  to  the  opening  of  the  bids,  the  failure 
to  so  advertise  will  invalidate  the  award.13 

A  mistake  in  an  advertisement  that  is  unimportant  does  not  vitiate  the 
proceedings  so  as  to  require  a  readvertisement  for  proposals,  in  the  absence 
of  any  allegation  that  any  one  would  have  bid  more  than  was  bid  if  the 
-error  were  not  made.  It  was  so  held  when  three  of  four  newspapers 
printed  correctly  the  date  on  which  the  proposals  were  to  be  received, 
ivhile  the  fourth  paper  named  a  day  and  date  that  was  impossible.13 
Authority  by  a  city  council  to  a  clerk  to  issue  a  notice  for  bids  is  not  lost 
because  the  clerk  made  a  mistake  in  his  attempt  to  publish  it,  if  there  is  no 
•evidence  that  any  one  was  misled  or  harmed  thereby.14  When  the  charter 

1  Sage  v.  Central  R.  Co.,  99  U.  S.  334.  12  Re  Pennie,  108  N.  T.  364J;  Burke  v. 

2  State  v.  Gloucester  Co.,  50  N.  J.  Law  Turney,  54  Gal.  486:  and  see  Baltimore  v. 
585;  and  see  People  v.  Chill  (Sup.),  39  N.  Keyser  (Md.),  19  Atl.  Rep.  706,  in  which 
Y.  Supp.  372.  case  a  bid  was  accepted  which  was  re- 

3  Mopley  v.  Leophart,  51  Ala.  587.  ceived  six  minutes  past  the  time,  and  one 
4 16  Amer.  &  Eng.  Ency.  Law  822.               properly  deposited  was  rejected  because 
*  Tylers.  Bowen,  1  Pittsb.  225.                     the  officer  to  whom  it  was  delivered  was 

6  Le  Roy  v.  Jamison,  3  Sawy.  ('U.  S.)  269,  late.     See  also  People  v.  Yonkers,  39  Barb. 

7  Bragdon  9.  Hatch,  77  Me.  433.  (N.  "J  )  266. 

8  Haskell  «.  Bartlett,  34  Cal.  281.  13  Appeal  of  Gilfillan  (Pa.),  22  Atl.  Rep. 

9  Kretsch  v.  Helin,  45  Ind.  438.  593. 

10 16  Amer.  &  Eng.  Ency.  Law  820.  14  Gilmore  s.Utica  (K  /.),  29  N.  E.  Rep. 

11  State  v.  City  of  Bayonne  (N.  J.),  8  Atl.      841. 
Rep.  295  [1887]. 


126    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  136. 

requires  that  "a  special  ordinance  ordering  the  work  to  be  done  shall  be 
passed  before  a  public  improvement  is  made,  and  a  general  ordinance  has 
been  passed  which  declared  that  the  council  shall  order  the  construction 
of  the  improvement  proposed,  and  directed  the  engineer  to  advertise  for 
bids  therefor,"  it  was  held  that  the  fact  that  bids  are  advertised  for  before 
the  special  ordinance  is  passed  will  not  invalidate  the  proceedings.1 

Usually  all  preliminary  acts  and  resolutions  are  held  conditions  prece- 
dent to  taking  final  steps  to  letting  the  contract.3 

The  posting  of  a  notice  from  9  o'clock  A.M.  of  the  first  day  and  which 
remained  posted  until  4  o'clock  P.M.  of  the  fifth  day  was  held  to  have  been 
posted  five  official  days.3  An  advertisement  stating  that  bids  would  be  re- 
ceived up  to  a  certain  hour  on  Saturday,  September  19, 1875,  when  the  19th 
was  Sunday,  was  held  an  unimportant  mistake,  the  notice  being  otherwise 
sufficient  as  to  time.4 

When  it  is  required  that  the  board  of  public  works  should  advertise,  an 
advertisement  issued  from  the  office  of  the  board  signed  by  its  president, 
and  stating  that  a  satisfactory  bond  must  be  filed  with  the  board,  was  held 
sufficient.5 

136.  Instructions  to  Bidders— Work  is  Undertaken  by  What  Authority 
and  under  What  Restrictions. 

PUBLIC  WORKS, 

.IMPROVEMENT. 

PROPOSALS  FOR  BUILDING 

Engineer's  Office, 

Broadway,  New  York  City, 

,  1897. 

GENERAL  INSTRUCTION'S  FOR  BIDDERS. 

"This  work  is  undertaken  by  virtue  of  (or  in  accordance  with,  or  in 

obedience  to,  or  to  conform  to,  or  to  comply  with)  ordinance , 

(act  of  legislature,  the  act  of.. incorporation ,  or 

under  the  charter  of  the  city  of ,  or  the company,  or  acts  of 

congress)  approved  the day  of ,  189. .,  under  which  act  (or 

charter,  or  ordinance)  this  improvement  is  undertaken,  and  to  which 
the  attention  of  bidders  is  especially  invited. 

"  The  attention  of  bidders  is  also  invited  to  the  acts  of  congress 
approved  1885,  as  printed  in  Vol.  24,  page  414,  IT.  S.  Statutes  at  Large, 
which  prohibits  the  importation  or  immigration  of  foreigners  and 
aliens  under  contract  or  agreement  to  perform  labor  in  the  United 
States  or  territories  or  the  District  of  Columbia. 

"  The  attention  of  bidders  is  especially  called  to  the  provisions  of 
legislative  act,  chapter  277,  Laws  of  New  York  of  1894  ;  and  act  chapter 
413,  Laws  of  New  York  of  1895,  relating  to  the  dressing  and  carving  of 

1  City  of  Springfield   v.   Weaver   (Mo.      Rep.  794. 

Sup.),  37  S.  W.  Rep.  509  ;  Keane  v.  Cush-          3  Kneeland  v.  Furlong,  20  Wis.  437. 
ing,  15  Mo.  App.  96,  disapproved.  *  Case  v.  Fowler,  65  Ind.  29. 

2  Corsicana  v.   Kerr  (Tex.),   35  S.  W.          5  Beniteau  v.  Detroit,  41  Mich.  116. 


§  138.]  BIDS  AND  BIDDERS.  127 

stone  used  in  New  York  state  work;  and  also  to  the  provisions  of  act 
chapter  622,  Laws  of  New  York  of  1894,  relating  to  the  hours  of  labor 
and  rate  of  wages,  and  to  the  employment  of  citizens  of  the  United 

States." 

137.  Necessity  for  Restrictions  and  Regulations. — Public  work  is  usually 
authorized  by  an  act  of  congress  or  of  the  legislature  of  the  state,  or  is 
undertaken  under  a  charter  or  franchise  bestowed  by  the   government. 
The  fact  that  it  is  public  work  implies  that  it  is  for  the  benefit  of  the  pub- 
lic, and  that  public  interests  are  involved  which  must  be  protected. 

To  secure  competition  and  prevent  combinations  and  conspiracies  tend- 
ing to  favoritism  and  to  defraud  the  people  and  the  government,  it  is  there- 
fore usual  to  incorporate  into  the  act  or  charter  a  clause  requiring  the  work 
to  be  advertised,  bids  solicited,  and  the  contract  awarded  to  the  lowest 
(responsible)  bidder. 

138.  The  Requirements  of  the  Act  or  Charter  are  Imperative. —When 
such  an  enactment  has  been  made,  it  is  not  directory  merely,  but  it  is 
imperative  in  the   requirement  that  specifications  shall  be  prepared  and 
published,  the  work   advertised,  and  the  contract  awarded  to   the  lowest 
bidder.1     The  law  is  interpreted  strictly,  for  when  in  an  act  the  legislature 
declares  that  a  board  of  public  works  "  may  "  advertise  for  proposals,  etc., 
it  has  been  construed  to  mean  that  they  "shall"  advertise  for  proposals;1 
but  in  another  case  under  a  statute  which  provides  that  a  board  shall  have 
control  of  the  construction  of  improvements,  and  that  it  may  advertise  for 
proposals  and  may  accept  or  reject  any  proposals,  it  was  held  discretionary 
with  it  to  advertise  or  not  as  it  might  elect.3  * 

When  there  are  two  sections  to  an  act,  one  of  which  provides  that  the 
board  of  supervisors  "  must "  contract  for  publishing  the  delinquent  tax  list 
with  the  lowest  bidder  after  ten  days'  notice  of  the  letting  of  the  contract, 
and  the  other  requires  the  tax  collector  to  publish  the  delinquent  list  by  a 
certain  date,  it  was  held  that,  on  failure  of  the  supervisors  to  contract  for 
publishing  the  list,  the  tax  collector  was  not  authorized  to  do  so.4 

Under  an  act  which  gave  an  election  to  commissioners  either  to  carry  on 
the  works  by  their  own  engineers  and  with  labor  employed  and  materials 
furnished  by  themselves,  or  to  let  out  the  whole  or  parts  of  the  work  by  con- 
tract to  the  lowest  bidder  after  advertising  in  the  newspaper  for  proposals, 
it  was  held  that,  the  commissioners  having  elected  to  let  the  work  out  by 
the  latter  method,  they  must  give  it  to  the  lowest  bidder,  and  a  contract 
awarded  to  one  who  was  not  the  lowest  bidder  according  to  the  terms  and 

1  Beaver  v.  The  Trustees,  19  Ohio  St.  97,  25  N.  Y.  Supp.  50,  5  Misc.  Rep.  36;  and 
and  cases  cited;  Dallas  ®.  Ellison  (Tex.),  Santa  Cruz  Co.  v.  Heaton  (Cal.),  38  Pac. 
30  S.  W.  Rep.  1128;  Greene  v.  New  'York,  Rep.    693;    Sraeltzer  v.   Miller  (Cal.),  45 
1  Hun  (N.  Y.)  24.  Pac.  Rep.  264. 

2  McBrian  v.  Grand  Rapids,  56  Mich.  95.  4  Smeltzer  v.  Miller  (Cal.),  45  Pac.  Rep. 

3  Fitzgerald  ».  Walker  (Ark.),  17  S.  W.  264. 
Rep.  702  [1891];  and  see  People  v.  Buffalo, 

*  See  Sees.  50-55,  supra. 


128    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  138. 

specifications  advertised  and  proposed,  was  unauthorized  and  void.1  When 
commissioners,  by  a  single  vote,  have  once  elected  the  manner  in  which  work 
shall  be  done,  their  power  of  designation  is  gone.2  Bids  for  public  work  need 
not  be  invited  unless  it  is  expressly  required  by  statute,  charter,  or  ordi- 
nance.3 The  provisions  of  a  city  charter  requiring  contracts  to  be  made  upon 
advertisement  and  sealed  proposals  have  been  held  not  to  apply  to  contracts 
by  the  commissioner  of  public  works  for  public  work  authorized  by  special 
enactment.4  The  improvement  of  a  public  park  belonging  to  a  city  has 
ibeen  held  not  a  public  improvement  within  an  act  requiring  the  city  to  ad- 
vertise for  bids  for  work  and  materials  for  public  improvements.5  If  the 
provisions  of  the  law  be  not  carried  out,  and  a  contract  be  awarded  in  a 
manner  contrary  to  the  express  requirements  of  the  statutes  and  charters  of 
the  city  or  company,  the  irregularity  may  be  set  up  as  a  defense  to  the 
.action  on  the  contract.8 

Contracts  by  a  municipal  corporation,  a  county,  or  the  state  must  be 
within  the  act  creating  them  and  within  the  privileges  and  powers  of  their 
charter,  constitution,  or  organization,  or  they  are  void,  and  the  contractor  may 
recover  nothing  for  his  labor  and  materials.  The  statutes  are  obligatory  and 
not  merely  directory.7 

If  work  has  been  done  under  a  contract  which  is  void  for  having  been 
entered  into  in  violation  of  an  express  provision  of  the  statute  law  or  the 
charter,  constitution,  or  ordinance,  the  contractor  cannot  recover  for  the 
work  done  or  the  materials  furnished:  not  on  the  contract,  because  the 
contract  is  void,  which  is  equivalent  to  saying  there  is  no  contract;  and  not 
on  an  implied  contract  or  quantum  meruit,  because  there  is  nothing  from 
which  to  imply  a  request  to  do  the  work  except  in  the  manner  required  by 
law;  or  by  request  of  the  public  officer  who  assumed  to  make  a  contract 
which  is  null  and  void,  not  having  the  necessary  authority.8* 

The  requirements  of  the  act  that,  before  the  awarding  of  any  contract  for 
any  work  authorized  by  the  act,  the  city  council  shall  invite  sealed  proposals, 
and  shall  award  the  contract  to  the  lowest  bidder,  apply  to  every  contract 
authorized  by  the  act,  irrespective  of  the  character  of  the  work  to  be  done, 
or  of  the  mode  in  which  the  expense  is  to  be  paid.9  If  the  charter  provide 
that  no  contract  shall  be  made  for  any  public  work,  or  for  any  supplies  for 

1  Dickinson  v.  City  of  P.,  75  N.  Y.  65          6  Walsh?).  Columbus,  36  Ohio  St.  169. 
[1878];  Bigler  u.  Mayor  of  N.  Y.,  5  Abb.          6  Many  cases  cited  in  15  Amer.  &  Eng. 
N.  Cas.  (N.  Y.)  51.  Ency.  Law  1091. 

2  Bigler  v.  Mayor  of  N.  Y.,  5  Abb.  N.          7  Evans  on  Agency  211,  212;  15  Amer. 
Cas.  (N.  Y.)  51;  accord  Peoples.  Board  of  &  Eng.  Ency.  Law  1084-5  and  cases  cited  ; 
Improvement,  43  N.  Y.  227.  Young  v.  Mayor  of  Leomington,  L.  R.  8 

s  Cummings  v.    Seymour,  79  Ind.  491;  App.  Cas.  517   [1883];    and  see  Smith   v. 

Kingsley  v.  Brooklyn,  5  Abb.  N.  Cas.  (N.  New  York  (Sup.),  31  N.  Y.  Supp.  783. 

y.)   1  ;   Yarnold  v.  Lawrence,    15  Kans.  8  Bonesteel  «.  Mayor,  22  N.  Y.  162  ;  and 

126;  but  see  Adamson  v.  Nassau  Electric  many  cases  in  15  Amer.  &  Eng.  Ency.  Law 

R.  Co.  (Sup.)  33  N.  Y.  Supp.  732.  1085. 

4  Greene  v.  Mayor  of  N.  Y.,  60  N.  Y.  9  Santa    Cruz    Rock-Pavement    Co.    v. 

503.  Broderick  (Cal.),  45  Pac.  Rep.  863. 

*8ee  Sees.  50-53,  supra. 


§  139.]  BIDS  AND  BIDDERS.  129 

the  city,  and  no  such  work  or  furnishing  supplies  shall  "be  commenced,  until 
the  contract  therefor  has  been  approved  by  the  council,  all  contracts  must  , 
be  submitted  to  the  council  for  its  approval  or  disapproval,  without  regard 
to  auxiliary  and  supplementary  powers  to  contract  conferred  upon  commis- 
sioners, boards,  and  other  officers.1 

It  is  imperative  that  a  contractor  exercise  every  precaution  to  have  the 
contract  in  accordance  with  the  law,  for  although  the  city  officials  may 
be  honest  and  honorable,  and  the  city  be  inclined  to  meet  his  just  claims,  yet 
any  person  interested,  as  any  taxpayer,  can  object  and  have  mandamus  issue 
against  the  city  to  prevent  a  recovery  for  anything  that  has  been  done  under 
an  illegal  contract.* 

139.  Instructions  Should  Give  All  Necessary  Information  to  Bidders. — Any 
irregularity  in  the  proceedings  directed  by  the  act  or  charter  by  which  the 
work  is  authorized  to  be  observed  may  avoid  and  destroy  the  contract. 
Therefore  when  public  work  is  required  to  be  let  to  the  lowest  responsible 
bidder  upon  notice  of  the  work  or  material  required,  such  notice  should  give 
all  the  necessary  information  to  enable  parties  desiring  to  bid  to  make 
estimates.  Kesort  cannot  be  allowed  to  mere  verbal  explanation  to  ascertain 
substantially  all  that  is  contemplated  to  be  done,  as  that  might  lead  to  favor- 
itism and  other  mischief  intended  to  be  avoided  by  the  statute.2 

If  a  charter  provide  that  before  proceeding  with  any  proposed  public 
improvement  the  detailed  estimates  of  the  costs  of  such  work  or  improve- 
ments shall  be  made,  and  if  the  city  ordinance  provide  that  the  owner 
is  entitled  to  notice  of  the  intended  improvement,  a  contract  made  without 
any  estimate  of  the  cost  and  without  proper  notice  of  the  improvement 
is  illegal  and  not  binding.  The  proceedings  are  void,  and  the  collection  of 
a  tax  levied  to  pay  for  the  improvement  may  be  properly  enjoined.3  If  the 
act  or  charter  requires  public  notice  of  proposals  and  that  the  contract  be 
awarded  to  the  lowest  responsible  bidder  giving  adequate  security,  and 
security  be  furnished  by  the  lowest  bidder,  any  contract  not  in  strict  compli- 
ance with  the  law  or  charter  is  unauthorized  and  void.4  f  If  the  act  requires 
that  a  certain  number  of  days'  notice  be  given  of  the  time  for  the  bids,  it  is 
mandatory  and  must  be  complied  with.5  The  illegality  can  be  pleaded  in 
defense  to  any  action  on  a  contract  which  has  not  been  made  strictly  as 
required  by  the  law.6 

1  Common  Council  of  Detroit  v.  Public         5  Boerd  v.  Gillies  (Ind.),   38  N.  E.  Rep. 
L.  Comm.  of  Detroit  (Mich.),  59  N.  W.  Rep.       40. 

654;  People  v.  Waring  (Sup.),  39  N.  Y.  6  Dillon's  Munic.    Corp'ns,    §  466  (4th 

Supp.  193;  and  see  Alford  9.  Dallas  (Tex.),  ed.),  and  cases  cited;  McDermott  v.  Board 

35  S.  W.  Rep.  816.  of  Jersey  City,  28  Atl.  Rep.  424;   Shaw  9. 

2  Littler  ®.  Jayne,  124  Ills.  123  [1889].  Trenton,  49  N.  J.  Law  339;  States.  Cun- 

3  Mills  v.  City  of  Detroit  (Mich.),  54  N.  niugham(Neb.),  59N.W.  Rep.  485;  Heidle- 
W.  Rep.  897.  burgh  v.  St.  Francis  Co  ,  (Mo.),  12  S.  W. 

4  In  re  Eager,  46  N.  Y.  100;  Maxwell  9.  Rep.  914  [1889];  Littler  v.  Jayne,  124  Ills. 
Stamlaus,  53  Cal.  389;  People  9.  Gleason,  123  [1888];  Dickinson  9.  Pougbkeepsie,  75 
121  N.  Y.  631  [1890];   Smith  9.  Mayor,  10  N.  Y.    65  [1878];    Davenport  9.    Klien- 
N.  Y.  504.  schmdt,  13  Pac.  Rep.  249-  [1887]. 

*See  Sees.  177,  178,  infra.  \See  Sees.  133,  134,  supra. 


130    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  140. 

When  the  statute  required  "  good  and  sufficient  security  for  the  perform- 
ance of  the  work/'  a  contract  given  to  the  lowest  bidder  without  requiring 
"good  and  sufficient  security"  is  not  legal,  and  the  contractor  cannot 
recover  for  the  work  when  done,  it  not  having  been  accepted  or  used.1  The 
neglect  to  insist  upon  security  is  not  material  where  the  charter  provides  for 
"  good  and  sufficient  security,  as  required  by  said  board,"  it  not  appearing 
that  the  board  required  any  security.2 

When  the  laws  require  that  certain  work  be  let  or  franchises  be  sold,  such 
statute  requires  that  the  transaction  be  on  a  cash  basis  or  for  cash,  and  an 
offer  to  pay  percentage  of  the  gross  receipts,  or  to  do  or  provide  any  other 
thing,  in  consideration  of  such  a  franchise,  cannot  be  considered.3 

140.  There  Must  be  Competition,  in  Compliance  with  the  Statute  or 
Charter. — The  power  of  the  city  to  make  contracts  is  limited  and  can  only 
be  exercised  in  the  manner  prescribed.  There  must  be  competition  before 
a  contract  can  be  awarded.4 

If  a  charter  provides  that  the  contract  be  given  "  to  the  lowest  responsible 
bidder  giving  adequate  security/'  officials  authorized  to  let  the  contract  may 
not  arbitrarily  reject  the  lowest  bid  and  accept  a  higher  bid  without  facts 
justifying  it ;  there  must  be  facts  tending  to  show  that  the  lowest  bidder  was 
not  responsible,  or  at  least  some  pretense  to  that  effect.5 

Canvassing  by  the  engineer,  or  permission  by  him  to  the  contractor  to 
alter  the  bid  where  the  proposals  have  been  referred  to  him  for  calculation 
and  comparison,  or  any  acts  by  which  one  bidder  who  was  not  the  lowest 
bidder  is  made  to  appear  the  lowest,  will  render  the  contract  void  and  unau- 
thorized.8 The  making  of  a  contract  at  different  prices,  and  according  to  a 
different  classification  of  the  kind  of  work,  and  with  new  and  material  clauses 
inserted,  which  were  not  offered  to  the  other  bidders,  will  destroy  the  obliga- 
tions of  the  contract  and  render  the  contractor's  rights  thereunder  null  and 
invalid.  He  cannot  recover  for  what  his  work  is  reasonably  worth. 

A  contractor  should  insist  upon  the  contract  being  executed  in  the  same 
terms  and  according  to  the  plans  and  specifications  upon  which  he  has  made 
his  bid,  and  whether  to  his  favor  or  detriment  should  be  no  excuse  for  his 
not  requiring  it.  Engineers  and  commissioners  will  realize  the  great  detri- 
ment they  may  cause  their  favorites  and  friends  by  seeking  to  benefit  them 
or  favor  them  to  the  exclusion  of  other  competitors.  The  law  is  well  settled, 
and  anything  which  does  not  fairly  and  fully  satisfy  the  requirements  of  the 
statute,  and  does  not  secure  to  the  state  or  city  the  full  benefits  of  the  com- 
petition which  is  sought,  may  render  the  contract  void  and  not  binding  upon 
the  city.7 

1  Mackey  ®.   Columbus  (Mich.),  38  N.       [1887]. 

W.  Rep.  399  [1888].  5  People  v.  Gleason,  121  N  Y.  631  [1890]. 

2  Carey  v.  East  Saginaw  (Mich.),  44  N.  6  Dickinson  v.  City  of  Poughkeepsie,  75 
W.  Rep.  168.  N.  Y.  65  [1878];  Smith  «.  Mayor,  10  N.  Y. 

3  Thompson  v.  Board  of  Sup'rs  (Cal.),  44  504. 

Pac.  Rep.  230.  '  Dickinson  v.  City  of  Poughkeepsie,  75 

4  Shaw  v.   Trenton,  49  N.  J.  Law  339      New  York  65  [1878]. 


§  141.]  BIDS  AND  BIDDERS.  131 

141.  Public  Officers  cannot  Legalize  nor  Ratify  Void  Contracts.— Such 
contracts  are  not  merely  voidable ;  they  are  void  and  cannot  be  made  valid 
by  subsequent  acts  of  the  city  or  its  officials.1  Nothing  is  added  to  the 
legality  of  a  claim  under  such  a  contract  by  the  common  council  auditing 
and  allowing  it,  for  they  have  no  jurisdiction  so  to  do.a  Though  the 
contract  was  let  to  one  who  was  apparently,  but  not  in  fact,  the  lowest 
bidder,  it  cannot  be  made  binding  upon  the  city  by  acceptance  of  the 
materials  or  by  ratification  by  an  officer  or  otherwise,  except  in  the  form 
prescribed  by  law.3  Nor  does  the  auditing  of  such  a  claim  by  the  board  of 
audit  stop  the  city  from  denying  liability  on  the  ground  of  fraud  in  the 
making  of  the  contract.4  A  contract  let  when  the  appropriation  for  the 
work  was  insufficient,  is  not  ratified  by  a  subsequent  appropriation.5 

Where  the  charter  requires  that,  before  any  improvement  shall  be 
commenced,  the  city  council  shall  pass  a  resolution  ordering  the  same  to  be 
done,  the  council  cannot,  after  the  improvement  has  been  completed,  pass 
an  ordinance  ordering  the  same  to  be  done,  so  as  to  render  an  assessment 
therefor  against  the  property  owners  valid.8  And  when  an  act  provides 
that  "no  person  shall  be  employed  or  permitted  to  teach  in  any  of  the 
public  schools  of  the  state,  *  *  *  who  is  not  the  holder  of  a  lawful 
certificate  of  qualification  or  permit  to  teach,  any  contract  made  in 
violation  of  this  section  shall  be  void ";  it  was  held  that  where  a  teacher 
is  employed  who  does  not  hold  a  certificate,  the  subsequent  procurement  of 
such  certificate  does  not  render  the  contract  of  employment  valid.7  If  a 
city  charter  provides  that  a  city  is  not  bound  by  any  contract  unless  author- 
ized by  an  ordinance  and  in  writing,  officers  of  the  city  cannot  bind  it  by  a 
contract  not  in  writing.8  A  re-awarding  of  the  contract  by  the  common- 
council  over  the  veto  of  the  mayor  and  without  any  question  or  objection 
that  the  lower  bids  were  formed  and  made  by  responsible  parties,  does  not 
make  it  any  more  valid.9 

When  contracts  are  required  to  be  let  to  the  lowest  responsible  bidder 
and  approved  by  the  governor,  and  an  act  makes  the  payment  or  acceptance 
of  money  for  refraining  from  bidding  a  misdemeanor,  and  the  criminal 
code  imposes  a  punishment  for  a  conspiracy  to  prevent  bidding,  a  letting 
to  a  firm,  which  is  formed  for  the  purpose  of  preventing  bidding,  some  of 
whose  members  have  been  paid  by  the  others  for  refraining,  is  void,  not 

1  Dillon's  Munic.   Corp'ns  (4th  ed.),    §      N.  Y.  Supp.  688. 

466,  and  casos  cited  ;  N^el  v.  San  Antonio  4  Nelson  v.  City  of  New  York,  supra. 

(Tex.),   33  S.  W.  Rep.  263;   Santa  Cruz  5  Indiamipol  s  v.  Wann  (Ind.),  42  N.  E. 

Pav.  Co.  v.  Broderick  (Gal.),  45  Pac.  Rep.  Rep.  901. 

863  «  Buckley  v.  City  of  Tacoma  (Wash.), 

2  People  «.  Gleason,  121N.  Y  631  [1890],  37  Pac.  Rep.  441 ;  nnd  see  Ellis  v.  de- 
distinguishing  E.    R  Gas  L.  Co.  v.  Don-  burne  (Tex.),  35  S.  W.  Rep  495. 

nelly,  93  N.  Y.  557;    Arnot  0.  Spokane  7  H<»smeru.  Sheldon  School Dist.  (N.  D.), 

(Wnsh.),   33  Pac.    Rep.  1063;   Com'rs  v.  59  N.  W.  Rep.  1035. 

Boyle,  9  Ind.  296,  and  note,  68  Am.  Deo.  8  Arnot  v.  City  of  Spokane  (Wash.),  33 

293.  and  4  Amer.  &  Eng.  Ency.  Law  364.  Pac.  Rep.  1063. 

3  Nelson  t>.  City  of  New  York  (N.  Y.  9  Peoples  Gleason,  121  N.  Y.  631  [18901. 
App.),   29  N.   E.   Rep.   814;  affirming  5 


132     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  142. 

being  a  letting  to  the  lowest  bidder  within  the  meaning  of  the  constitution, 
and  although  the  contract  is  approved  by  the  governor  and  by  an  expert 
printer  appointed  under  the  act,  and  within  the  maximum  price  fixed  by  it. 
An  answer  setting  up  a  combination  in  the  form  of  a  firm  to  prevent,  com- 
petition in  bidding,  that  the  bids  were  made  and  contracts  entered  into 
pursuant  to  that  purpose,  and  that  certain  of  the  conspirators  paid  certain 
others  for  entering  into  the  combination,  is  sufficiently  specific  on  general 
demurrer;  the  presumption  arising  from  such  facts  that  the  conspirators 
would  otherwise  have  competed  at  the  bidding.  The  state  is  not  estopped 
by  acts  of  the  commissioners  of  public  contracts  done  on  the  faith  of  the 
validity  of  the  letting  prejudicial  to  the  firm.1 

142.  The  Legislature  may  Ratify  Contracts. — The  legislature  may  ratify 
a  contract  entered  into  by  a  municipal  corporation  for  a  public  purpose 
which  was  ultra  vires  and  void,  and  thus  render  it  valid  and  binding.     Such 
a  contract  having  become  valid  by  a  later  enactment,  it  is  not  affected  by  a 
still  later  act  which  required  certain  other  forms  and  ceremonies  which  had 
not  been  complied  with.2 

Legislative  enactment  will  not  be  held  a  ratification  of  illegal  acts  in  the 
performance  of  work  unauthorized  by  a  previous  act  unless  the  intention 
so  to  ratify  is  apparent  and  beyond  question.3  A  later  enactment  authori- 
zing the  Croton  aqueduct  board  "  to  construct  work  mentioned  and  to  fur- 
nish materials  necessary  for  the  same  in  such  places  and  in  such  manner 
by  contract  as  they  may  deem  the  public  interests  require"  was  held  to 
repeal  an  earlier  act  which  required  "  that  all  contracts  should  be  awarded  to 
the  lowest  bidder  for  the  same  respectively,  with  adequate  security,  and 
every  such  contract  should  be  deemed  confirmed  in  and  to  such  lowest 
bidder  at  the  time  of  opening  the  bids."4 

If  the  constitution  of  the  state  require  that  the  work  be  advertised  and 
let  to  the  lowest  bidder,  the  legislature  cannot  authorize  officers  of  the  state 
to  contract  in  any  other  way.5  The  legislature  cannot,  in  some  states  at 
least,  authorize  city  officers  to  pay  money  to  an  individual  for  which  there 
is  no  legal  and  enforceable  claim,  for  it  is  a  "gift  of  public  money  within  a 
constitutional  inhibition  against  such  gifts." 6 

143.  A  Contractor  cannot  Recover  under  a  Void  or  Illegal  Contract- 
When  the  contract  provides  that  all  contracts  for  work  and  supplies  for 
more   than  $100   shall  be  let   to   "the  lowest   responsible   bidder  giving 

1  Dement    v.    Rokker    (111.),    19  N.   E.  text,  but  there  are  cases  to  the  contrary. 
Rep.  33  [1889].  A  collection  of  cases  in  Dillon's  Munic. 

2  Brown    v.    Mayor.    63    N.    Y.    [1875];  Corn'ns  (4th  ed.),  §  465,  note 
reversing   Brown  u.  Mayor,  3   Hun.  685  ;          3  Kiugsley  *>.  Brooklyn,  supra. 

but  see  Sault  Ste.  Marie  v.  Van  Deusen,  40  4  The^People  v  The  Croton  Aq  Board 

Mich.  429;   Palmer  t>.    Tingle-  (Ohio),  45  49  Barb.  259  [1867]. 

N.  E.  Rep.  313;   Mitchel  v.  Milwaukee,  5  Mulnix  v.   Mutual   Ben.   L.    Ins.  Co. 

'8  Wis.  92;  Pearsall  v.  Gt.  Northern  Ry.  (Colo.),  46  Pac  Rep.  123. 

Co.  (C.  C.),  73  Fed.  Rep.  933  ;  Clinton  v.  6  Conlin  0.  San  Francisco  (Cal)  46  Pac. 

Wnlliker  (Iowa),  68  N.  W.  Rep.  431.  Rep.  279. 
The  law  is  generally  as  stated  in  the 


§  143.]  BIDS  AND  BIDDERS.  133 

adequate  security/'  a  letting  of  a  contract  to  one  not  the  lowest  bidder 
without  showing  that  the  lowest  bidder  is  not  responsible,  nor  his  security 
is  inadequate,  nor  any  pretense  to  that  effect,  is  illegal  and  void,  and  the 
contractor  who  has  done  work  under  such  a  contract  cannot  recover  for  his 
work.1  Municipal  or  public  corporations  are  not  liable  for  the  value  of 
materials  furnished  under  illegal  or  forbidden  contracts  when  the  munici- 
pality cannot  choose  whether  or  not  it  will  retain  or  reject  the  benefits 
of  such  work  or  materials;'  nor  will  the  fact  that  the  contract  was  let 
to  the  contractor  as  the  lowest  bidder  enable  him  to  recover.  He  cannot 
recover  the  value  of  the  materials  furnished  under  a  contract  fraudulent 
or  void.8 

A  county  is  not  liable,  therefore,  for  a  court-house  erected  upon  public 
ground  under  a  contract  made  in  disregard  of  a  statute  that  forbids  con- 
tracts for  public  structures  to  cost  more  than  $500,  unless  to  the  lowest 
bidder,  upon  plans  and  specifications  previously  adopted,  even  though  the 
county  use  the  buildings.  The  requirements  of  such  a  statute  apply  to 
contracts  for  parts  of  such  structures.  The  rule  applies  to  alteration  or 
additions,  in  the  course  of  construction  under  a  legally  made  contract,  the 
cost  of  which  exceeds  $500.  If  bids  are  not  invited  and  the  contract 
awarded  according  to  law,  the  county  is  not  liable  for  the  price  or  value  of 
the  work  so  undertaken.4 

When  the  law  prescribes  a  certain  method  for  the  exercise  and  execution 
of  special  powers  conferred  they  must  be  carried  out  as  required.  The  con- 
tractor cannot  recover,  notwithstanding  a  statute  exists  that  provides  that  a 
contractor  shall  be  entitled  to  recover  if  the  work  has  been  done  and 
materials  furnished  in  good  faith,  under  a  contract  with  the  county  authori- 
ties, in  making  which  they  have  not  pursued  the  forms  prescribed  by  law. 
Such  a  statute  was  held  to  have  no  connection  with  the  cases  in  point.5 

A  sewer  assessment,  valid  on  its  face,  is  void  if  the  contract  was  let  with- 
out advertisement  for  proposals,  and  an  owner  of  assessed  property  may 
recover  a  payment  made  by  him  in  ignorance  of  the  invalidity.6 

If  county  commissioners  have  authority  to  contract,  and  work  is  done 
and  materials  furnished  with  their  knowledge  and  consent,  and  they  have 
been  accepted  and  used  by  the  county,  it  is  generally  held  that  the  con- 

1  Brady  u.  Mayor,  68  N.  Y.  312  ;  McDon-  State  v.  Biddle  (Com.  PL),  3  Ohio  N.  P. 
aid  v.  Mayor,  68  N.  Y.  23  ;  Dickinson  0.  173;    and    see  Hovey  v.    Wyandotte    Co. 
Poughkeepsie,    75  IS".   Y.  65;    People  v.  (Knns.\    44  Pac.    Rep.    17;  Townsend  v. 
Gleason  (N.  Y.),  25  N.  E.  Rep.  4  [1890].  Holt  Co.  (Neb.),  59  N.  W.  Rep.  381;  Lit- 

2  Richardson    v     County  of    Grant,    27  tier  v.  Jayne,   124  111.  123  [1888].      Con- 
Fed.  Rep.  495-  Dickinson  ®.  City  of  P.,  tract  for  eight  statues;  so  held  when  the 
75  N.  Y.  65  [1878]  :   People  v.  Gleason,  contractor  kept  at  work  on  a  public  build- 
121   N.  Y.    631   [1890]  ;   Bigler  v.  Mayor  ing  after  he  had  instructions  to  stop  work, 
(N.  Y .).  5  Abb.  N.  Cas.  51.  Epperson  v.    Shelby  Co.,    7  Lea  (Teun.) 

3  Nelson  v.  City  of  N.   Y.,  29  N.   E.  275. 

Rep  814;  affirming  5  K  Y.  Supp.  688.  5  Heidleburgh  v.   St.  Francis  Co.  (Mo.) 

4  Richardson  v.  Grant  Co.  (Ind.),  27  Fed.       12  S.  W.  Rep.  914  [1889]. 

Rep.  495  [1883] ;  Buchanan  Edge.  Co.  «.  6  Mutual  Life  Ins.  Co.  v.  City  of  N.  Y. 
Walters  (Com.  PL),  3  Ohio  N.  P.  176;  (Sup.),  29  N.  Y.  Supp.  980. 


134    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  144. 

tractor  may  recover  the  reasonable  value  of  his  work  and  materials  without 
an  express  contract.1  There  must  be  no  statute  which  requires  an  express 
contract.2 

144.  Labor  Laws  and  Limitations  Must  be  Complied  With. — The  adver- 
tisement, proposal,  and  award  of  the  contract  must  conform  to  the  laws, 
charters,  and  ordinances  enacted  with  regard  to  such  work,  not  only  as 
regards  the  manner  of  soliciting  proposals,  but  of  entering  into  the  contract. 
If  there  are  general  statutes,  such  as  those  prohibiting  foreign  contract 
work,  or  limiting  the  number  of  hours  labor  per  day,  or  the  employment  of 
aliens  or  minors,  the  bids  and  contracts  must  be  made  and  executed  in  con- 
formity with  such  laws  and  ordinances,5  and  they  should  be  brought  to  the 
notice  of  contractors  in  the  instructions  to  bidders,  and  tho  bidder  should 
be  required  to  observe  them  in  his  proposal  and  estimate.  They  should  be 
made  separate  stipulations  in  the  contract.  This  advice  is  given  for  the 
benefit  of  the  bidder  as  well  as  the  public  officer.  It  is  the  duty  of  the 
public  officer  to  proceed  in  accordance  with  the  laws  enacted,  without  ques- 
tioning their  constitutionality  or  legality,  so  long  as  there  is  no  conflict  in 
his  various  duties;  and  if  the  bidder  will  have  his  proposal  considered,  he 
must  make  it  conform  to  the  standard  adopted  and  by  which  the  bids  are 
to  be  judged.  If  he  does  not  do  this,  his  bid  is  pretty  certain  to  be  rejected 
as  informal.  The  constitutionality  or  legality  of  such  labor  laws  can  be 
tested  when  they  are  violated. 

Laws  which  forbid  contractors  to  accept  more  than  eight  hours  for  a 
day's  work,  except  in  cases  of  necessity,  have  been  held  not  to  abridge  the 
privileges  of  citizens  under  the  United  States  constitution,  art.  14,  sec.  1, 
or  to  deprive  any  citizen  of  his  rights  and  privileges  under  the  constitution 
of  the  State  of  New  York,  art.  1,  sec.  I.4 

In  Colorado  a  different  decision  was  reached,  and  the  court  held  that 
"a  bill  prohibiting  mining  and  manufacturing  companies  to  contract  with 
their  employees  for  labor  for  more  than  eight  hours  a  day  is  in  violation  of 
the  rights  of  parties  to  make  their  own  contracts,  under  the  constitution  of 
the  United  States  (fourteenth  amendment),  and  the  bill  of  rights  of  the 
constitution  of  Colorado.5  While  a  city  council  may  by  ordinance  designate 
the  number  of  hours  laborers  shall  work  on  the  public  works  of  the  city,  it 
cannot  make  a  violation  of  such  ordinance  a  misdemeanor.6 

In  Indiana  the  act  providing  that  eight  hours  shall  constitute  a  legal 
day's  work  applies  only  where  the  employment  is  by  the  day.7  Contractors 

1  Madison  Co.  •».  Gibbs,  9  Lea  (Tenn.)  4  White,    J.,    dissenting    in    People    -y. 
383;  and  see  Atkins  ®.  Barnstable  Co.,  97  Beck  (Super.  Buff.),  30  N.  Y.  Supp.  473. 
Mass.  428.  5  In  re  Eight- Hour  Law  (Col.  Sup.),  39 

2  Walcott  0.  Lawrence  Co.,  26  Mo.  272;  Pac.  Re^.  328;  semble,  Hellman  0.  Shoul- 
Lehigh  Co.  «.  Kleckner,  5  W.  &  S.  (Pa.)  ters  (Gal.),  44  Pac.  Rep.  915. 

181;  4  Am.  &  Eug.  Ency.  Law  364.  «  State  v.  McNally  (La.),  21  So.  Rep.  27. 

"People  «.  Groton  Aq.  Bd.,  26  Barb.  7  Helphenstine  0.  Hartig  (Ind.  App.),  31 

(N.  Y.)  240;  Wiggins  0.  Phila.,  2  Brws.  N.  E.  Rep.  845. 
44-1. 


§  144.]  BIDS  AND  BIDDERS.  135 

and  builders  usually  avoid  the  law  by  hiring  all  labor  by  the  hour  and  paying 
them  accordingly. 

An  act  of  the  legislature  which  requires  employers  to  pay  wages  once  or 
twice  each  month  between  fixed  days  has  been  held  to  impair  the  obligation 
of  the  contracts,1  and  violates  the  Pennsylvania  constitution,  which  declares 
that  all  men  have  certain  inherent  and  indefeasible  rights,  among  which  are 
those  of  enjoying  and  defending  life  and  liberty,  of  acquiring,  possessing,  and 
protecting  property  and  reputation,  and  of  pursuing  their  own  happiness.2 
In  Illinois  such  a  law 3  was  held  unconstitutional,  as  a  taking  of  property 
without  due  process  of  law,  and  as  being  class  legislation.4 

The  Rhode  Island  courts  have  maintained  the  constitutionality  and 
legality  of  a  statute  which  requires  every  corporation,  other  than  religious, 
literary,  or  charitable  corporations,  and  every  corporated  city,  but  not 
including  towns,  to  pay  the  wages  of  their  employees  weekly,  all  wages 
earned  by  them  to  within  nine  days  of  such  payment.5 

Some  other  examples  of  recent  legislation  on  the  subject  of  wages 
are  statutes  which  require  the  employers  to  pay  their  employees  their 
wages  earned  by  them  in  full  on  the  day  of  their  discharge,  without 
abatement  or  reduction,  and  providing  a  penalty  for  their  failure  to  pay  as 
the  statute  requires.  The  laws  as  enacted  in  some  states  required  the  wages 
to  be  paid  on  the  day  of  discharge,  notwithstanding  the  fact  they  might 
not  be  due  until  a  later  day  by  the  terms  of  the  contract  of  employment, 
which  had  the  effect  of  impairing  the  obligation  of  contracts  or  of  limiting 
the  right  to  contract,  and  were  therefore  unconstitutional — at  any  rate  so 
far  as  natural  persons  were  concerned.  In  respect  to  corporations  the  courts 
have  held  that  under  a  power  reserved  in  the  charter  to  alter  and  repeal 
laws  relating  to  the  formation  and  organization  of  corporations,  that  the  en- 
actment was  valid.  That  all  the  powers  a  corporation  has  were  created  and 
granted  by  the  legislative  assembly,  and  that  by  accepting  the  charter  the 
company  agreed  that  they  might  be  amended  according  to  law.6  The 
Rhode  Island  court  went  further,  and  held  that  the  power  of  a  corporation 
to  contract,  granted  by  its  charter,  was  not  such  a  property  that  modifying 
it  or  limiting  it  by  the  legislature  could  be  called  a  taking  away  of  the  com- 
pany's property  without  compensation.7 

A  law  which  requires  railroad  companies  to  pay  its  employees  what  is 
due  them  within  fifteen  days  after  demand  therefor,,  and  imposes  damages  of 

1  Commonwealth    v.    Isenberg    (Quart.  Island  Pub.  Laws,  ch.  918,  sees.  1,  2. 
Sess.),  4  Pa.  Dist.  Rep.  597.  6  State  v.  Brown,  etc.    Mfg.  Co.  (R.  I.) 

2  Commonwealth    u.    Isenberg    (Quart.  [1892J,  supra;  Leep  «.  St.  Louis,  etc.,  R. 
Sess.),   supra;   Godcharles  v.   Wigeman,  Co. ,  58  Ark.  407. 

113  Pa.  St.  431;  but  see,  contra,  Hancock  v.  Herein  is  one  feature  at  least  where  a 

Yaden,  121  Ind.  366.  corporation  doing  business,  as  such,  is  at  a 

3  Act  approved  April  23,  1891.  disadvantage  with  a  natural  person. 
4Braceville  Coal  Co.  v.  People,  147  111.  'State  v.  Brown,  etc.,  Mfg.  Co.  (R.  I.) 

66.  [1892],  supra/  but  see,  contra,  Braceville 

5  State  v.  Brown,  etc.,  Mfg.  Co.  (R  I.),       Coal  Co.  v.  People,  147  111.  66. 
£9  Am.    &  Eng.  Corp.  Cas.  190 ;   Rhode 


136     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  145, 

twenty  per  cent,  of  the  same  due  for  a  failure  to  comply  with  such  law,  was 
held  unconstitutional  as  being  special  or  class  legislation.1 

Statutes  requiring  contractors  and  employers  to  pay  their  help  wages  in 
lawful  money,  and  prohibiting  payment  by  orders, "  store-pay,"  etc.,  have  been 
held  constitutional  where  their  application  has  been  general  and  to  all  classes 
of  employers.2  But  when  the  laws  require  that  mine  owners  and  manufactur- 
ers shall  pay  their  help  in  lawful  money  of  the  United  States,  at  regular 
intervals,  and  fails  to  include  persons  and  companies  engaged  in  other  pur- 
suits, then  it  is  class  legislation  and  unconstitutional.  It  has  been  so  held 
in  West  Virginia,  Illinois,  Missouri,,  Pennsylvania.3 

Under  the  laws  of  State  of  New  York  it  is  a  misdemeanor  punishable 
with  a  fine  for  a  contractor  to  employ  any  one  but  citizens  of  .the  United 
States  on  state  or  municipal  work.  Recently  the  supreme  court  of  the  state 
rendered  a  decision  that  the  law  could  not  be  enforced  with  regard  to 
Italian  laborers,  as  it  conflicted  with  the  treaty  between  the  United  States 
and  the  king  of  Italy,  which  guarantees  the  latter's  subjects  residing  within 
the  territory  of  the  former  country  all  the  rights  and  privileges  with  respect 
to  trade  and  employment  that  are  enjoyed  by  citizens.4 

The  constitution  and  laws  of  the  states  are  subordinate  to  every  treaty 
made  by  the  authority  of  the  United  States,  and  if  the  laws  of  any  state  refuse 
certain  rights  to  foreigners  or  aliens  which  the  treaty  of  their  country  secures 
to  its  subjects,  then  such  laws  are  void.5  A  statute  that  forbids  aliens  who 
cannot  qualify  as  electors  from  fishing  in  the  waters  of  the  state  was  held  in 
violation  of  our  treaty  with  China,  and  therefore  void.6  The  right  to  reside  in 
a  state  implies  the  privilege  of  trading  and  laboring,  and  a  statute  which  for- 
bids certain  aliens  from  working  in  a  mining  claim,  whether  for  themselves  or 
for  others,  was  declared  null  and  void.7  That  the  states  as  well  as  their  citi- 
zens are  bound  by  treaties  of  the  Federal  government  cannot  be  doubted.8 

145.  Form  of  Notice  and  Instructions.  —  The  notices  usually  require 
certain  declarations  by  the  bidder,  which  he  must  make  to  entitle  his  bid  to 
consideration,  and  specify  certain  reasonable  restrictions  and  qualifications 
that  are  made  necessary  to  become  a  bidder. 

NOTICE   TO   BIDDERS.       GENERAL   INSTRUCTIONS   AND    CONDITIONS. 

Notice : — Bidders  are  advised  that  any  and  all  bids  deficient  in  any  of  the  following 
requirements  may  be  rejected  as  informal. 

1  San  Antonio,   etc.,  R.  Co.  v.  Wilson          5 1  Amer.  &  Eug.  Ency.  Law  465,  and 
(Tex.  1892),  £0  Amer.  &  Eng.  Corp.  Gas.       cases  cited. 

513.  s  in  re  Ah  Choug  «.  U.  S.,  Pac.  Coast  L. 

2  Peel  Splint  Coal  Co.  v.  State  (W.  Va.),       J.,  June  12,  1880. 

15  S.  E.  Rep.  1000.  i  Chapman  v.  Toy  Long,  4  Sawy.  (U.  S.) 

3  23  Amer.  &  Eng.  Ency.  Law  936-7;  but  37  ;  Baker  ?;.  Portland,  5  Sawy.  (U.  S.)  566. 
see  Hancock   v.    Yarden,    121    Ind.    866,  8  The  La  Ninfa  (C.  C.  A.),  75  Fed.  Rep. 
contra;  and  see  Shaffer  v.  Union  Min.  Co.,  513  ;  The  Alexander  (C.  C.  A.),  75  Fed. 
55  Md.  74.  Rep.   519 ;  and  see  Hcllman  v.  Shoulters 

4  Justice  White,  in  People  ®.  Warren,  13  (Cal.)  44  Pac.  Rep.  915. 
Miscl.  Rep.  (N.  Y.)  615  [18951. 


§  145.]  BIDS  AND  BIDDERS.  187 

1.  Capacity  to  Contract. 

No  bid  will  be  accepted  from,  or  contract  awarded  to,  any  corporation 
until  it  shall  have  furnished  satisfactory  proof  of  its  legal  capacity  to 
enter  into  and  perform  the  same  contract. 

2.  Bidders  in  Arrears  or  Default. 

No  bid  will  be  accepted  from  or  contract  awarded  to  any  person  or 
corporation  who  is  in  arrears  to  the  Proprietor,  State,  or  City,  upon  debt 
or  contract,  or  who  is  a  defaulter  as  surety  or  otherwise  upon  any  obli- 
gation to  the  Proprietor,  State,  or  City. 

3.  Bidder  must  be  a  Practical  Contractor  or  Builder. 

Proposals  from  parties  who  are  not  known  to  be  regularly  and  practi- 
cally engaged  in  the  class  of  work  called  for  by  the  drawings  and  speci- 
fications, aud  to  possess  ample  facilities  for  doing  the  same,  will  not  be 
accepted. 

4.  Bidder  must  le  Qualified. 

The  bidder  must  satisfy  the  engineer  or  commissioner  of  his  ability 
to  furnish  the  materials  and  perform  the  work  for  which  he  bids. 

5.  No  Assistance  from  Officers  or  Employees. 

Proposals  must  be  prepared  without  the  assistance,  additional  infor- 
mation, or  suggestion  of  any  person  belonging  to,  employed  by,  or  hold- 
ing office  in  the  Company,  State,  or  City. 

6.  Government  Officers  can  have  no  Interest. 

In  work  for  the  Federal  Government  this  clause  ;s  often  inserted  : 
No  member  of  or  delegate  to  Congress,  nor  any  person  belonging  to  or 
employed  in  the service  of  the  United  States,  shall  have  any  in- 
terest in  the  contract  for  this  work  or  any  benefit  that  may  arise  there- 
from; but  if  the  contract  be  made  with  an  incorporate  company  for 
its  general  benefit,  this  rule  will  not  be  construed  to  extend  to  this  con- 
tract so  far  as  it  relates  to  members  of  Congress. 

7.  No  Interest  in  Other  Bids. 

Reasonable  grounds  for  supposing  that  any  bidder  is  interested  in 
more  than  one  proposal  for  the  same  item  may  cause  the  rejection  of 
all  proposals  in  which  he  is  interested. 

8.  All  Persons  Interested  must  be  Named. 

Bidders  are  required  to  state  in  their  proposals  or  estimates  their 
names  and  places  of  residence,  their  business  and  the  names  of  all  per- 
sons interested  with  them  therein;  and  if  no  other  person  be  so  inter- 
ested, they  shall  distinctly  state  the  fact. 

9.  Bid,  Fair  in  all  Respects. 

The  proposal  must  state  that  it  is  made  without  any  connection  with 
any  other  person  making  any  bid  or  estimate  for  the  same  purpose,  and 
that  it  is  in  all  respects  fair,  and  made  without  connection  or  collusion 
with  any  other  person  making  proposals  for  the  same  work  or  materials. 

10.  Statement  that  no  Officer  or  Employee  is  Interested. 

Bidders  are  required  to  state  that  no  person  employed  or  appointed 
by  virtue  of  any  city  ordinance,  legislative  act,  or  act  of  Congress  rela- 
tive to  the [name  of  work] has  any  interest  in  the  proposal 

or  contract ;  that  no  member  of  the  Common  Council,  Head  of  a  De- 
partment, Chief  of  a  Bureau,  or  any  Deputy  thereof,  or  Clerk  therein,, 


138    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  146. 

or  any  other  Officer  of  the  State,  City,  or  Corporation  is  directly  or  indi- 
rectly interested  therein,  or  in  the  supplies  or  work  to  which  it  relates 
or  in  any  portion  of  the  profits  thereof. 

11.  Declaration  as  to  Truth  of  Statements. 

The  proposal  or  estimate  must  be  verified  by  the  oath  in  writing  of 
the  party  or  parties  making  the  same,  that  the  several  declarations  and 
matters  stated  therein  are  in  all  respects  true;  and  if  more  than  one 
person  is  interested  in  the  proposal,  it  is  required  that  the  verification  be 
made  and  subscribed  by  all  parties  interested;  in  case  of  a  firm,  by  each 
and  every  member  of  the  firm. 

146.  Bidders  May  be  Required  to  Possess  Certain  Qualifications. — The 
extent  to  which  bidders  may  be  required  to  conform  to  the  "red  tape," 
so  called,  which  is  prescribed  in  the  instructions  to  bidders,  and  which  is  so 
distasteful  to  practical  contractors  and  builders,  must  be  determined  by  its 
reasonableness;  and  as  the  powers  conferred  upon  public  officers  are  largely 
discretionary,  it  may  be  said  to  be  almost  unlimited.  The  recording  of  all 
information  and  data  as  to  the  parties,  their  names,  addresses,  names  of 
members  of  firms  and  officers  of  corporations,  and  the  authority  by  which 
they  act  is  necessary  to  good  business  methods. 

When  commissioners  or  a  board  of  public  works  have  been  authorized  to 
invite  proposals  and  to  award  contracts  under  certain  acts  or  laws,  they  may 
prescribe  in  their  notice  to  bidders  any  reasonable  formality  to  be  observed 
that  does  not  interfere  with  or  prevent  fair  competition,  even  though  the 
court  can  assign  no  reason  for  or  purpose  to  be  served  by  the  specification 
or  requirement.1 

Neglect  on  the  part  of  the  bidder  to  conform  strictly  to  the  forms  and 
reasonable  requirements  so  prescribed  will  be  fatal  to  his  chances  of  receiv- 
ing the  award  of  the  contract.  No  bid  should  be  received  that  does  not 
comply  with  the  instructions  to  bidders.  If  a  proposal  is  informal  and 
irregular,  it  cannot  properly  be  considered.2  A  reference  in  the  bid  to 
46  plans,"  "  specifications,"  and  "  diagrams  "  has  been  held  to  be  to  the  plans, 
•etc.,  furnished  the  bidder  and  from  which  he  was  supposed  to  make  his 
estimate.3  The  bid  must  not  be  lacking  in  definiteness:  it  must  be  clear  as 
to  quantity,  quality,  and  price.  A  bid  to  supply  materials  "  at  what  it 
•cost  to  lay  them  down"  is  too  indefinite.4  A  specification  for  electric  lights 
which  stated  the  candle-power,  but  failed  to  name  the  system,  was  held  suf- 
€iently  definite.5  The  omission  in  a  proposal  of  two  items  of  comparatively 
insignificant  value  will  not  render  invalid  a  bid  which  is  otherwise  proper  in 
form.8 

1  Re  Marsh,  83  N.  Y.  435  [1881]  ;  State  2  See  Wiggins  v.  Philadelphia,  2  Brews. 

v.  Governor,  22  Wis.  110  [1867]  ;  Faunan  (Pa.)  444;    Weed  v.  Bench,  56  How.  Pr. 

0.  Comm'rs,  21  Ohio  St.  311  [1871]  ;  luter-  (N.  Y.)  470;  Re  Marsh,  83  N.  Y.  431. 

state,  etc.,  Co.  v.  City  of  Phila.  (Pa.),  30  3  Sexton  0.  Chicago,  107  111.  323. 

All.  Rep.  383;  May  v.  Detroit,  2  Mich.  N.  4  State  u.  York  Co.  Comm'rs,  13  Neb.  57. 

P.  235;   State  v.  Board,  42  Ohio  St.  374;  5  Detroit  v.  Hosmer  (Mich.),  44  N.  W. 

but  see  People  v.   Contracting  Board,  46  Rep   622. 

Barb.  254  [1865].  6  State  v.    York    Co.    Comm'rs,  supra. 


§  148.]  BIDS  AND  BIDDERS.  139 

The  reasonableness  of  the  first  requirement,  that  corporations,  and  all 
parties,  for  that  matter,  should  demonstrate  their  capacity  to  contract,  is  too 
evident  to  require  discussion.  Legal  capacity  of  the  parties  to  contract  is 
the  first  element  of  a  binding  agreement. 

147.  Restrictions  which  Exclude  Certain  Persons  from  Bidding. — The 
reasonableness  of  a  restriction  which  denies  certain  persons  the  privilege  of 
bidding  is  not  so  apparent  in  that  it  renders  it  possible  for  the  parties  hav- 
ing the  power  to  award  the  contract  to  foster  favoritism  by  excluding  ex- 
perienced as  well  as  inexperienced  persons  who  have  been  so  unfortunate 
&s  to  have  had  differences  with  public  officers.  A  clause  that  provides  that 
bids  from  "persons  in  arrears  to  the  government  or  who  are  in  default 
either  as  contractors  or  as  sureties  will  not  be  received,"  or  that  "  the  bidder 
must  be  known  to  be  regularly  and  practically  engaged  in  the  class  of  work 
bid  for,"  must  give  to  some  one  the  determination  of  these  questions.  If  a 
public  officer  is  inclined  to  be  very  exacting  or  officious,  he  is  certain  to  raise 
these  questions.  Whether  or  not  a  contractor  is  in  arrears  or  default  is  a 
question  that  sometimes  requires  a  long  time  to  settle  conclusively;  and  the 
amount  of  exnerience  a  man  should  have  had  to  be  capable  of  undertaking 
•certain  work,  the  precise  character  of  which  may  never  before  have  been  met, 
would  be  a  question  which  no  two  persons  would  determine  alike.  If  such 
questions  were  decided  by  an  engineer  or  officer  arbitrarily,  and  the  courts 
subsequently  found  that  the  contractor  was  not  in  arrears  or  default,  or  that 
he  was  capable  and  his  bid  had  proved  to  be  the  lowest  bid  for  the  work,  it 
might  prove  an  unhappy  restriction,  the  reasonableness  of  which  would  be 
questionable.  Decisions  of  boards  under  such  restrictive  clauses  should  re- 
ceive the  closest  scrutiny  of  the  courts. 

In  Pennsylvania  it  has  been  held  that  a  court  would  not  control  the  dis- 
cretion of  public  officers  in  suph  a  case,  and  that  it  was  proper  to  refuse  a 
contract  to  the  lowest  bidder,  although  he  was  pecuniarily  responsible,  if  he 
had  previously  defrauded  the  city  by  furnishing  inferior  supplies,  even  though 
he  had  not  been  judicially  convicted  of  the  act;  *  while  in  another  case  it 
was  held  that  a  citv  council  could  not  arbitrarily  refuse  to  entertain  a  bid 
for  city  printing  because  the  bidder  was  not  the  owner  of  a  newspaper.2 

To  be  able  to  demand  an  award  of  the  contract  the  lowest  bidder  may 
be  required  not  only  to  offer  adequate  security  for  the  performance  of  the 
-contract,  but  he  must  also  be  able  to  undertake  what  is  expected  or  demanded 
of  him.3 

148.  There  Must  be  No  Collusion  or  Other  Efforts  to  Prevent  Competi- 
tion.— The  reasonableness  of  a  requirement  that  the  contractor  shall  not 
have  had  assistance  or  advice  from  employees  or  fiduciaries'of  the  city  or 
any  department  of  public  works,  and  that  no  one  elected  to  office  or  holding 

1  Douglass  v.   Commonwealth,  108  Pa.       Rep.  414. 

St.  559.  3  People  v.   Dorsheimer,   55  How.   Pr. 

2  Berry    <o.    Taeoma  (Wasli.),  40   Pac.      (N.  Y.)  118. 


140     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  148. 

positions  of  trust  and  confidence  should  have  any  interest  in  the  proposal  or 
contract,  are  manifestly  reasonable  and  just  when, such  acts  or  interests  by 
the  parties  mentioned  are  contrary  to  the  express  policy  of  the  law  and  of 
good  government.* 

A  statute  prohibiting  any  councilman  of  a  city  from  being  interested  in 
any  contract  with  the  city  has  been  held  to  apply  to  a  member  of  the  council 
who  is  a  stockholder  and  secretary  of  a  corporation  having  a  contract  for 
lighting  the  city,  even  though  the  member  was  elected  after  the  contract 
was  executed.1  A  court  of  its  own  motion  may  institute  a  prosecution 
against  a  public  officer  for  being  concerned  in  a  public  contract  by  direct- 
ing the  grand  jury  to  investigate  the  matter,  and  after  a  presentment  by 
them  directing  the  district  attorney  to  submit  an  indictment.11 

That  bidders  should  be  required  to  state  the  names  of  all  parties  inter- 
ested in  the  bid,  and  that  the  bid  is  made  without  connection  with  any  other 
bidder,  and  that  it  is  in  all  respects  fair  and  without  collusion  or  fraud,  can- 
not be  questioned.  It  is  a  uniform  doctrine  that  any  combination  at  public 
or  private  sales  having  the  effect  of  preventing  competition  in  bidding  is 
against  the  policy  of  the  law  and  avoids  the  sale.8  The  same  doctrine  ap- 
plies to  bidding  for  public  work  in  response  to  invitations  for  tenders  by 
which  competition  is  sought.  A  combination  of  contractors  for  the  pur- 
pose of  destroying  competition  and  securing  to  one  a  contract  which  the  law 
requires  should  be  awarded  only  after  competition  is  against  public  policy 
and  illegal,  and  if  it  results  in  unreasonable  prices  the  proposal  may  be 
rejected  or  the  contract  repudiated  or  annulled. 4f 

Any  agreement  between  parties  designing  to  make  bids,  tending  either 
directly  or  indirectly  to  restrain  or  lessen  rivalry  and  competition  between 
them,  is  void  as  against  public  policy,  even  though  it  may  not  appear  that 
such  agreement  did  really  produce  any  result  detrimental  to  public  interests. 

This  is  true  in  auction  sales,  but  it  seems  that  the  auctioneer  or  owner 
must  have  been  a  party  to  the  collusion  or  deceit.  The  fact  that  a  person 
by  mistake  believed  himself  employed  to  attend  an  auction  sale  as  a 
"puffer,"  and. by  making  fictitious  bids  induced  one  who  was  the  highest 
bidder  at  the  sale  to  bid  more  than  he  would  otherwise  have  done,  does 
not  render  the  sale  void  as  to  the  owner  if  the  auctioneer  and  owner  had 
no  knowledge  of  such  person's  conduct.5  The  fact  that  several  of  the 
highest  bids  made  were  not  enforced  by  the  owner  does  not  entitle 

1  Common  wealth  v.  De  Camp  (Pa.  Sup.),  25  S.  E.  Rep.-   693;  Jennings  Co.  Com'rs 
35  Atl.  Rep.  601.  «.  Verbarg,  63  Ind.  107. 

2  Commonwealth  v.  Kurd  (Pa.),  35  Atl.          4  People  v.  Stevens,  71  N.  Y.  527;  People 
Rep.  682.  v.  Lord,  6  Hun  390;  Woodwortk  v.  Ben- 

3  Durfee  v.  Moren,  57  Mo.  374  [1874]  ;  netf,  43  N.  Y.  273;  Gulick  v.  Ward,  10  N. 
Saxton  v.  Sieberling  (Ohio),  29  N.  E.  Rep.  J.  Law  87. 

179;  and  see  Locke  v.  Willingbam  (Ga.),          5  Locke  v.  Willingham  (Ga.),  25  S.  E. 

Rep.  693. 

*  See  Sees,  42,  85,  supra, 

\See  Sec.  82,  Chap.  3,  Part  I ,  supra. 


§  148.]  BIDS  AND  BIDDERS.  141 

another  highest  bidder  for  a  different  lot  offered  at  the  same  time  to  rescind 
his  bid.1 

Agreements  between  two  contractors,  sending  in  distinct  sealed  proposals, 
that  if  the  contract  should  be  awarded  to  either,  both  should  share  equally 
in  the  profits,  if  any,  or  contribute  equally  for  losses,  has  been  held  against 
public  policy  and  void.2  But  agreements  between  bidders  for  a  public 
improvement  to  become  partners  in  doing  the  work  if  either  of  them 
secured  the  contract,  and  that  any  benefit  should  inure  to  the  firm,  have  been 
held  valid  and  binding  when  it  did  not  appear  that  the  intent,  effect,  or 
necessary  tendency  of  the  contract  was  to  stifle  fair  competition.3  * 

An  interesting  case  is  where  two  contractors  by  previous  agreement 
made  a  bid  for  their  joint  benefit,  in  the  name  of  one  of  them  and  a  third 
person,  for  the  construction  of  certain  city  improvements,  and  the  contract 
was  awarded  to  them.  One  of  them,  with  the  other's  knowledge  and 
consent,  had  made  a  separate  bid,  at  a  much  higher  figure,  which  was  not 
seriously  intended.  The  city  engineer's  estimate  was  higher  than  the  latter 
bid,  and  there  were  three  other  bids  still  higher.  Under  these  circumstances 
it  was  held  that,  even  if  the  second  bid  was  put  in  for  a  fraudulent  purpose, 
there  was  no  room  for  the  inference  that  it  had  any  influence  in  the 
making  of  the  award;  and,  as  the  attempted  fraud  was  therefore  unsuc- 
cessful, it  could  furnish  no  ground  for  refusing  to  compel  one  of  the  con- 
tractors to  account  to  the  other  for  his  share  of  the.  profits  made  under  the 
contract.4 

A  statute  that  provides  that  the  contract  shall  "in  all  cases  be  let  to  the 
lowest  responsible  bidder  "  has  been  held  not  to  permit  the  substitution  of 
another  person  as  contractor  in  place  of  the  lowest  bidder,  and  further  that 
any  contract  based  upon  such  a  substitution  is  void.  The  lowest  bidder  was 
to  have  a  bonus  for  the  contract.5!  If  as  a  result  of  illegal  combinations  to 
prevent  competition  a  contract  is  let  at  an  unreasonable  price,  the  party 
defrauded  may  repudiate  the  contract  and  recover  damages.6 

A  secret  contract,  between  persons  proposing  to  bid  on  the  construction 
of  a  public  work,  by  which  their  bids  are  to  be  put  in,  apparently  in  com- 
petition, but  really  in  concert,  with  the  intention  of  securing  as  high  a  price 
as  possible,  and  dividing  the  profits,  will  not  be  enforced,  though  one  of  the 
parties  secured  the  contract,  executed  the  same,  and  received  the  profits.7 
A  note  given  in  part  consideration  of  an  agreement  to  refrain  from  bidding 

1  Locke  v.  Williugham  (Ga.),  25  S.  E.  Brennan,  34  Neb.  129;    contra    Atcheson 
Rep.  693.  v.  Mallon,  43  N.  Y.  147. 

2  Atcheson    v.    Mallon,  43  N.   Y.    147;  4  McMullen  v.  Hoffman  (C.  C.),  75  Fed. 
Wood  worth    v.    Bennett,   43  K    Y.    274;  Rep.  547. 

Hunter  v.  Pfeiffer,  108  Ind.  197  [1885].  5  Hannah  «.  Fife,  27  Mich.  172. 

3  Breslin    v.   Brown,    24   Ohio  St.    565;          6  People   v.  Lord,  6  Hun  (N.  Y.)  390; 
McMullen  v.  Hoffman  (C.    C.),   75  Fed.       People  «.  Stevens.  71  N.  Y.  527. 

Rep.  547;  word,  Flanders  v.Wood  (Tex.),  7  McMullen  t>.  Hoffman  (C.  C.),  69  Fed. 
18  S.  W.  Rep.  572;  and  see  Whalen  v.  Rep.  509,  75  Fed.  Rep.  547. 

*  See  Sec.  149,  infra.  t  See  Sec.  15,  supra. 


142    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  148. 

at  a  public  sale  of  goods  is  invalid  except  in  hands  of  an  innocent  pur- 
chaser.1 

Any  combination  of  contractors  by  which  the  privilege  of  bidding  is 
secured  by  one  without  competition  is  illegal,  though  not  criminal  in 
Indiana,  and  if  it  results  in  letting  the  contract  at  unreasonable  prices,  the 
proposals  may  be  rejected  or  the  contract  repudiated.  A  fraudulent  bid 
renders  the  contract,  with  the  bidder  making,  it  null  and  void.2  Any  promise 
of  reward  to  induce  another  contractor  who  had  intended  to  bid  not  to  bid 
renders  the  contract  null  and  void.3  Any  fraudulent  practice,  such  as 
collusion  between  public  officers  and  the  contractor,  will  have  the  same  eifect.4 
In  Indiana  such  a  combination  among  the  contractors  to  make  high  bids  and 
secure  an  exorbitant  price  for  the  work  and  to  divide  the  profits  has  been 
held  not  to  be  a  crime.5 

148^.  Possibility  of  the  Law  Being  Used  to  Escape  Onerous  Contracts. — 
The  position  of  a  contractor  undertaking  public  works  is  a  precarious  one 
indeed,  when  a  slight  omission  of  duty  by  the  council  or  a  neglect  of  duty  on 
the  part  of  a  public  officer  may  destroy  his  supposed  rights  in  a  construction 
contract,  or  prevent  him  absolutely  from  recovering  for  work  done  and 
materials  furnished,  no  matter  how  conscientiously  and  skillfully  performed. 
That  a  man's  rights  and  compensation  for  an  honest  effort  performed  in 
good  faith  should  depend  upon  the  acts  and  misfeasance  of  another  over 
whom  he  has  no  control,  is  a  hardship  which  justice  can  never  require.  It 
may  be  the  effect  of  a  necessary  law,  but  it  is  wholly  wanting  in  equity. 

It  has  been  suggested  that  a  strict  application  of  the  law  might  afford  the 
contractor  an  avenue  of  escape  from  a  burdensome  undertaking,  as  when  he 
has  made  a  mistake  in  his  estimate  and  proposal,  or  when  the  conditions  are 
such  that  he  desires  to  evade  the  performance  of  the  contract.  With  the 
aid  of  some  subordinate  officer  a  fictitious  case  of  collusion  or  some 
irregularity  could  be  worked  up  which  would  render  the  award  or  contract 
void  or  illegal,  and  render  it  necessary  to  readvertise  the  work,  to  the  relief 
and  escape  of  the  cunning  contractor.  From  what  has  preceded  it  would 
not  seem  necessary  to  secure  the  assistance  of  a  public  officer,  but  fellow 
contractors  might  afford  relief  by  exposing  a  fake  combination  to  prevent 
competition  in  bidding.  If  such  irregularities  were  made  out  and  the  lowest 
bidder  was  not  shown  to  be  a  party,  the  city  or  state  could  not  equitably 
retain  his  certified  check  nor  hold  his  bondsman  for  his  failure  to  enter  into- 
or  to  complete  his  contract.  If  the  state  or  city  refused  to  enter  into  the 
contract  or  was  enjoined  from  so  doing,  the  contractor  could  hardly  be  made 
to  suffer  in  consequence.  There  are  cases  where  conspiracies  have  been. 

1  Atlas  National  Bank  v.  Holm(C.  C.  A.),          4  Nelson  -p.  New  York,  5  N.  Y.  Supp, 
71  Fed.  Rep.  489.  688,  s.  c.  29  N.  E.  Rep.  814;  In  re  D.  &  H. 

2  15  Amer.  &  Eng.  Ency.  Law  1100.  C.  Co.,  8  N.  Y.  Supp.  352 ;  In  re  A»uder- 

3  Jennings  County  Comm'rs  v.  Verbarg,  son,  109  N.  Y.  554. 

63  Ind.  107 ;  Woodworth  v.  Bennett,  43         b  State  v.  Bruner  (Ind.),  35  N.  E.  Rep, 

N  Y.  273;  Gulick  v.  Ward,  10  N.  J.  Law      28. 

87. 


§  149.]  BIDS  AND  BIDDERS.  148 

formed  to  secure  contracts,  but  the  author  has  found  none  in  which  the 
object  has  been  to  get  rid  of  them.  In  New  York  it  has  been  decided  that 
a  contract  secured  by  corrupt  means  was  voidable  only  at  the  election  of  the 
city,  one  of  the  parties.1 

Some  of  the  cases  seem  to  have  anticipated  the  possibility  of  such  a  con- 
spiracy and  evasion,  as  in  those  cases  where  the  courts  have  held  that  the 
attempt  to  prevent  competition  must  have  been  successful  to  avoid  the 
contract,  that  to  render  the  bid  or  contract  void  the  result  must  have  been 
a  letting  at  an  unreasonable  price.2  For  a  contractor  to  prove  that  the  work 
had  been  let  at  an  exorbitant  price  or  that  the  public  interests  had  suffered 
might  not  be  an  easy  matter,  especially  when  he  himself  was  in  a  tight  place 
on  account  of  having  bid  too  low. 

149.  What  is  Good  Evidence  of  Fraud  and  Collusion  of  Public  Officers 
and  Servants. — An  estimate  of  the  quantity  of  work  which  was  only  a  ran- 
dom guess,  and  made  the  amount  of  stone  excavation  at  more  than  double 
and  the  earth  excavation  at  less  than  one-half  the  actual  amount,  was  held 
not  an  estimate  that  would  form  a  basis  for  a  valid  contract;  that  such  an 
'estimate,  taken  in  connection  with  a  bid  of  more  than  five  times  the  actual 
cost  of  excavation  earthwork  and  less  than  one  and  one-half  per  cent,  of  the 
actual  value  of  stone  work,  thus  showing  on  its  face,  according  to  the  engi- 
neer's estimate,  that  he  was  the  lowest  bidder,  when  he  really  was  the  high- 
est bidder,  raised  a  just  inference  of  fraud  and  collusion.3*  So  it  may  be 
shown  in  proof  of  fraud  that  the  bidder  had  offered  to  sell  materials  at 
prices  lower  than  those  stated  in  his  bid.4 

The  facts  that  the  bidder  secured  the  contract  as  the  lowest  bidder  by 
putting  in  an  unbalanced  bid;  that  the  city  officers,  exercising  the  option 
given  them  by  the  contract,  only  called  for  those  materials  the  price  for 
which  was  in  excess  of  the  fair  price,  and  in  greatly  increased  quantities; 
and  that  the  advertised  estimated  amount  of  some  of  such  materials  was 
greatly  less  than  the  amount  actually  needed  at  the  time, — are  sufficient  to 
show  fraud  and  collusion  in  the  letting  of  the  contract.5 

Public  officers  having  public  works  in  hand  are  presumed  to  know  the 
usual  prices  paid  for  work,  and  evidence  that  a  higher  price  was  agreed  upon 
than  was  shown  by  the  city  bid-book  to  have  been  paid  before  and  after  the 
contract,  for  similar  work,  was  held  competent  as  bearing  upon  the  alleged 
combination  and  collusion  of  the  commissioners.  Discretion  and  good  judg- 
ment must  be  exercised,  and  such  contract  be  fairly  made,  and  at  reasonable 

1  Devlin  v.  New  York  (Com.  PL),  23  N.  N.  E.  Rep.  623:  and  nee  McMillen  9.  Hoff- 
Y.  Supp  888.  man  (C.  0.),  75 Fed.  Rep.  547. 

2  15  Araer.  &  Eng  Ency.  Law  1100.  4  Nelson  9.  New  York  (App.),  29  N.  E. 

3  In  re  Anderson  (N.  Y.),  17  N.  E.  Rep.  Rep.  814,  affirming  5  N.  Y.  Supp.  668. 
209    [1888] ;    but  see  contra  in  Reilly  v.  '-  Nelson  9.  New  York,  supra. 

The  Mayor,  111  N.  Y.  473  [1889],  s.  c.  18 

*  See  Sec.  54,  Chap.  I.,  supra 


144    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  150. 

prices,  with  due  regard  to  the  interests  of  those  concerned,  or  a  court  of 
equity  will  relieve  against  them.1 

In  general,  contracts  are  not  void  as  against  a  public  officer  if  from  the 
agreements  it  does  not  appear  that  their  intent,  effect,  or  necessary  tendency 
is  to  stifle  competition.8  Therefore,  a  contract  between  several  architects,  who 
had  each  put  in  plans  and  specifications  in  competition  for  the  erection  of  a 
public  building,  to  retire  from  further  contest  and  let  the  plans  alone 
compete,  and  that  whichever  plan  should  be  accepted  all  should  share 
equally  in  the  remuneration,  is  not  against  public  policy,  the  competition 
not  being  in  the  least  influenced  by  the  agreement.3 

Likewise  when  one  of  the  parties  who  had  filed  his  bid  and  another  who  was 
about  to  file  his  bid  entered  into  an  agreement  to  become  partners  in  doing 
the  work,  in  the  event  of  either  party  beiu^  the  successful  bidder,  both  to 
share  the  profits  alike,  the  agreement  was  held  not  against  public  policy,  it 
not  appearing  that  the  intent,  effect,  or  necessary  tendency  of  the  contract 
was  to  stifle  competition.4  * 

150.  Oath  as  to  Truthfulness  of  Statements. — It  seems  that  bidders  may 
be  required  to  verify  the  statements  made  in  their  proposals  under  oath,  and" 
that  when  the  bidder  is  a  firm,  each  partner  may  be  required  to  make  oath 
to  the  truthfulness  of  the  statements  made.6 

If  a  question  be  raised  as  to  the  truth  of  statements  made  in  proposal, 
which  on  its  face  entitles  the  bidder  to  the  contract,  it  has  been  held  that  a 
board  of  public  officers  could  not  decide  the  question  against  the  bidder  and 
award  the  contract  to  another  without  giving  him  an  opportunity  to  be 
heard;6  f  and  in  this  case  the  board  was  clothed  with  discretionary  powers 
providing  that  contracts  should  be  awarded  to  the  lowest  bidder  who  fur- 
nished such  security  as  the  board  approves,  unless  in  the  interests  of  the 
public  the  board  determines  to  reject  all  bids. 

MATTERS   TO   BE   CONSIDERED   IN   PREPARING   BIDS. 

151.  Forms  to  be  Used  and  Formalities  to  be  Observed. — 

1.  Made  in  Triplicate. 

All  bids  must  be  made  in  triplicate  upon  the  printed  forms  obtained 

at  the  office  of  the  Engineer,  No Street,  City  of , 

County  of ,  State  of ,  and  must  be  accompanied  by  & 

copy  of  the  Advertisement,  Instructions  and  Conditions,  the  Specifica- 
tions, and  Contract. 

2.  Addressed  and  Indorsed. 

All  proposals  must  be  addressed  to  the Engineer,  to  his 

^ook  v.  City  of  Racine,  49  Wis.  243  4Breslin«.  Brown,  24  Ohio  St.  565;  ac- 

[1880].  cord  Gulick  v.  Webb  (Neb.),  60  N.  W. 

2Whalen  «.  Brennan  (Neb.).  51  N.  W.  Rep.  13. 

Rep.    759;  Breslin  v.  Brown,  24  Ohio  St.  6 Peoples  Crotoii  Aqueduct,   26  Barb. 

565.  (N.  Y.)  240. 

3  Flanders  v.   Wood  (Tex.),    18  S.    W.  6  Connolly  v.  Board  (N.  J.),  30  All.  Rep. 

Rep.  572  [1892].  548. 

*  See  Sec.  148,  supra.  f  Compare  Sec.  147,  supra, 


§  151.]  BIDS  AND  BIDDERS.  145 

office,   and  indorsed  "  Proposals  for  the   Construction   [Building  of] 
....  .  . . . ,  with  the  name  [or  number]  of  the  person  making  the  bid  or 

proposal  and  the  date  of  its  presentation. 
21.  Indorsement  and  Time  of  Delivery. 

The  proposals  must  be  delivered  at  the  office  of  the  Engineer, 

in  a  sealed  envelope,  addressed  to ,  Engineer, ,  indorsed 

"Proposals  for  the  Construction  [Erection]  of,  etc., ,  at  or 

before  12  o'clock,  Monday, 18 ... 

3.  No  Bids  Received  after  Date  Named. 

Any  and  all  bids  received  after  the  hour  named  [fixed]  for  delivering 
the  proposals  will  not  be  opened  or  considered  unless  all  of  the  bids 
then  presented  shall  have  been  rejected  and  reconsidered. 

4.  Prices  to  be  Written  Out. 

The  prices  must  be  written  out  as  well  as  expressed  in  figures,  in  the 
respective  columns  provided  for  the  same. 

5.  Blank  Forms  Furnished  must  be  Used. 

Bidders  are  required,  in  making  their  bids  or  estimates,  to  use  the 
blanks  prepared  and  furnished  for  that  purpose  by  the  Engineer,  a  copy 
of  which,  together  with  the  forms  for  the  Contract  and  Bond,  including 
the  Specifications  and  Plans,  can  be  obtained  upon  application  therefor 
at  the  office  of  the  Engineer. 
51.  Blank  Forms. 

Each  bidder  must  obtain  blank  forms  of  proposal,  and  prepare  and 
submit  his  proposal  thereon.  The  original  drawings  named  in  the 
specification  will  be  retained  on  the  files  of  the  office  of  the  Engineer 
(Architect),  but  tracings  or  copies  of  the  same  will  be  prepared  for  the 
use  of  the  bidders. 

6.  Proposals  must  be  Confined  to  the  Estimates. 

Proposals  or  estimates  must  contain  neither  more  nor  less  than  is 
called  for  in  the  advertisement  or  provided  for  in  the  blank  form  of 
proposal  and  the  Specifications  find  Plans.  Any  bid  which  does  not 
contain  bids  for  all  items  for  which  bids  are  -invited,  or  which  contains 
bids  for  items  for  which  bids  are  not  asked,  will  be  considered  informal. 
No  change  shall  be  made  in  the  terminology  or  phraseology  of  the 
proposal. 

61.  Proposal  must  be  Regular. 

Proposals  that  contain  any  omission,  erasures,  alterations,  additions, 
or  items  not  called  for  in  the  "Specifications,  Plans,  and  Bill  of  Quantities 
contained  in  the  blank  form  of  proposal,  or  that  contain  irregularities 
of  any  kind,  may  be  rejected  as  informal. 

62.  Alterations  should  be  Explained  if  Alterations  are  Permitted. 
Alterations   by  erasures  or  interlineations   should   be   explained   or 

noted  in  the  proposal  over  the  signature  (or  number)  of  the  Bidder. 

7.  Unbalanced  Bid  not  Acceptable. 

Any  bid  in  which  the  prices  stated  for  the  several  items  are  unbal- 
anced may  be  rejected. 
S.  Bids  may  not  be  Withdrawn  nor  Changed. 

Permission  will  not  be  given  to  withdraw,  modify,  or  explain  any  pro- 
posal or  bid  after  it  has  been  deposited  with  the  Engineer. 
81.  Bids  may  be  Withdrawn. 

If  a  bidder  wishes  to  withdraw  his  proposal,  he  may  do  so  after  it  has 
been  delivered  to  the  Engineer  at  any  time  before  the  time  set  for 
opening  the  proposals,  without  prejudice  to  himself. 


146    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  161. 

9.  Bidders  Agree  to  Forms  Furnished. 

Parties  making  bids  are  understood  to  accept  the  terms  and  condi- 
tions contained  and  expressed  in  the  forms  of  Contract,  Specifications, 
Plans,  etc.,  annexed  to  the  proposal  submitted. 

10.  Forms  must  be  Kept  Intact. 

No  bid  will  be  received  if  detached  from  the  other  forms  with  which 
it  is  bound;  the  entire  package  must  be  delivered  unbroken  and  in  good 
order,  complete  in  all  respects. 

11.  Drawings  must  be  Returned. 

Parties  obtaining  copies  of  the  Plans  and  other  drawings  must  return 
them  to  the  Engineer  within days  from  the  date  of  receipt. 

12.  Estimate  of  Quantities. 

The  following  is  a  statement,  based  upon  the  estimates  of  the 
Engineer,  of  the  quantity,  quality,  nature,  and  extent,  as  nearly  as 
possible,  of  the  work  and  materials  required,  and  the  several  bids  will  be 
tested  and  compared  by  the  quantities  given  in  this  estimate: 

PRICE 

3,000  cubic  yards  Kock  Excavation $ 

5,000       "         "      Earth          "          $ 

4,000       "         "     Filling $ 

1,000      "         "     Bubble  Masonry $ 

500       "          "      Concrete $ 

800  square  yards  Paving  to  be  furnished  and  laid $ 

1,000  linear  feet  of  Curb  and  Guttering $ 

10,000  feet,  board  measure,  Pine  Lumber $ 

1,800  pounds  Wrought  Iron $ 

etc.  etc.  etc.  etc. 

121.  Estimate  of  Quantities. 

The  bids  will  be  compared  on  the  basis  of  the  Engineer's  estimate  of 
the  quantities  of  work  to  be  done  and  the  materials  to  be  furnished,, 
which  are  as  follows: 

Item  0] .     10,000  feet  B.  M.  Pine. 
Item  \b\.     20,000  Paving  Bricks, 
etc.          etc.          etc. 

13.  Estimate  is  Approximate* 

The  above-mentioned  quantities,  though  stated  with  as  much  accu- 
racy as  is  possible  in  advance,  are  approximate  only,  and  bidders  are 
required  to  submit  their  estimates  upon  the  following  express  conditions 
which  shall  apply  to  and  become  a  part  of  every  estimate  received : — 

a.  Bidders  must  determine  quantities  for  themselves. 

b.  Bidders  must  satisfy  themselves  by  personal  examination  of  the 
location  of  the  proposed  works,  and  by  such  other  means  as  they  may 
prefer,  as  to  the  accuracy  of  the  foregoing  estimates  of  the  Engineer  and 
the  nature  and  extent  of  the  work  to  be  performed  according  to  the 
Specifications  and  Plans,  and  shall  not  at  any  time  after  the  submission 
of  his  proposal  dispute  or  complain  of  such  statement  or  estimate  of 
the  Engineer,  nor  assert  that  there  was  any  misunderstanding  in  regard 
to  the  work  to  be  done  or  the  materials  to  be  furnished. 

c.  Bidders  should  make  an  inspection  and  estimate. 
131.   Contractor  should  Make  Personal  Examination. 

Before  submitting  a  proposal  each  bidder  should   make  a  careful 


§  151.]  BIDS  AND  BIDDERS.  147 

examination  of  the  drawings  aud  specifications,  and  fully  inform  himself 
as  to  the  quality  of  the  materials  and  character  of  the  workmanship 
required,  and  he  should  visit  the  locality  where  the  work  is  to  be  done 
and  make  a  careful  examination  of  the  place  where  the  materials  are  to 
be  delivered,  for  should  his  proposal  be  accepted  he  will  be  responsible 
for  any  and  every  error  in  his  proposal  resulting  from  his  failure  to  do  so. 
132.  Estimate  is  Correct. 

The  quantities  given  above  are  correct,  and  are  the  quantities  that  will 
be  used  in  the  final  estimate.  The  prices  bid  must  include  all  items  of 
expense  attending  the  work  as  herein  specified. 

14.  Work  and  Materials  are  Itemized.     Bid  is  for  Whole  Work. 

In  the  form  of  proposal  the  materials  to  be  furnished  and  the  work 
to  be  done  are  itemized  for  the  purpose  of  comparing  the  bids  and  as  a 
basis  for  the  monthly  estimates,  but  if  the  contract  be  awarded  it  will 
be  as  a  whole. 

15.  Itemized  Bid  Required. . 

Bidders  must  state  the  proposed  price  for  each  separate  item  of  the 
work  by  which,  together  with  the  time  required  to  complete  the  work, 
the  bids  will  be  compared;  but  each  bid  must  cover  the  entire  work, 
and  no  partial  bids  will  be  received. 

16.  Nothing  Allowed  for  Work  not  Mentioned. 

Work  or  materials  not  specified,  and  for  which  a  price  is  not  named  in 
the  contract,  will  not  be  allowed  for  nor  considered. 

17.  Quantities  may  be  Increased  or  Diminished. 

It  must  be  understood  that  these  quantities  are  given  merely  as  a 
basis  for  comparison  of  bids,  and  the  right  is  expressly  reserved  to 
increase  or  diminish  the  quantities  or  altogether  omit  any  items  that  in 
the  judgment  of  the  Engineer  may  be  deemed  unnecessary. 

18.  No  Claims  for  Damages  or  Extra  Work. 

Such  additions  or  omissions  do  not  entitle  the  contractor  to  any  claim 
for  extra  work  in  the  completion  of  the  work,  or  to  any  other  claims  for 
damages,  if  the  quantities  of  work  and  materials  should  prove  to  be 
greater  or  less  than  estimated. 
181.  Additions  and  Changes  to  be  at  Contract  Prices.    No  Extra  Claims. 

It  must,  therefore,  be  expressly  agreed  that  the  Engineer  may,  in 
his  discretion,  and  either  before  or  after  the  commencement  of  the 
work,  increase  or  diminish  the  quantities  to  an  extent  not  exceeding 
thirty  [30]  per  cent,  thereof.  If  the  quantities  be  increased,  the 
increase  shall  be  paid  for,  but  only  for  the  actual  amount  thereof,  and 
at  the  price  fixed  in  the  contract;  and  if  the  quantities  be  diminished, 
such  diminution  shall  not  in  any  case  constitute  a  claim  for  damages  or 
anticipated  profits  on  the  quantity  or  quantities  so  dispensed  with,  but 
only  the  quantities  actually  delivered  and  accepted  and  the  work  done 
and  approved,  will  be  paid  for. 

18a.  Engineer  may  make  Additions,    Omissions,  and  Alterations  at 
Market  Price. 

The  successful  bidder  must  understand  that  the  right  and  privilege 
is  reserved  to  the  Engineer  to  make  any  additions  to,  omissions  from, 
changes  or  alterations  in  the  materials  and  work  called  for  by  the 
drawings  and  specifications  and  contemplated  by  or  embraced  in  his 
proposal;  and  that  any  addition  to,  or  omission  from,  said  materials  or 
work  is  to  be  made  on  the  basis  of  the  contract  unit  value  of  the 
work  or  materials  referred  to;  and  that  any  changes  in  the  quality  of 


148    EXaiNUERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  152. 

the  materials  or  alterations  in  the  work  are  to  be  made  on  a  basis  of 
market  rates  prevailing  at  the  time  that  such  changes  or  alterations  are 
ordered;  and  further,  that  no  claim  for  compensation  for  any  extra  ma- 
terials or  work  shall  be  made  or  allowed  without  the  same  has  first  been 
agreed  upon  and  specifically  authorized  in  writing  by  the  Engineer,  under 
the  approval  of  the  owner,  commissioner,  etc. 

19.  Samples  to  be  Submitted. 

Each  bidder  must  submit  with  his  proposal,  at  his  own  expense, 
samples  of  the  materials  and  workmanship  [finish]  which  he  proposes 
to  use  [furnish],  the  samples  to  have  the  name  of  the  bidder,  the  title 
and  location  of  the  work,  and  the  date  of  the  proposal,  plainly  marked 

thereon.     Each  sample  of  stone. . .'. .  .must  be inches  by inches 

by inches,  one  face  showing  natural  fracture,  and  the  other  faces 

showing  different  styles  of  finish,  with  the  location  of  its  quarry  dis- 
tinctly marked  upon  it.  The  samples  submitted  with  the  proposal  of 
the  successful  bidder  will  be  retained,  arid  when  required  he  must  at 
his  own  expense  furnish  duplicates  of  the  samples. 

20.  Quality  of  Materials  to  be  Considered. 

The  character  of  the  materials  proposed  will  be  considered,  and  if  it 
be  deemed  to  the  interests  of  the  city,  state,  or  company,  or  owner  for 
this  or  any  other  reason  to  accept  any  proposal  other  than  the  lowest, 
the  right  to  do  so  is  expressly  reserved. 
201.  Materials  Offered  and  Time  required  to  Complete  will  be  Considered. 

Each  bidder  may  understand  that  the  quality  of  the  materials  offered 
and  the  time  stated  for-  the  supply  of  the  materials  and  the  completion 
of  the  work  will  be  considered  in  the  matter  of  acceptance  of  the 
proposal.  The  value  of  a  day  in  estimating  the  time  required  for  per- 
formance will  be  $ 

21.  Material*  furnished  by  City,  State,  or  Owner. 

The  following-named  materials  [and  labor]  will  be  furnished  to  the 
bidder  by  the  city,  state,  or  owner  at  the  prices  given  in  the  blank  form 
of  proposal  or  bill  of  quantities,  the  same  to  be  included  in  the  bidder's 
estimate  and  proposal. 

22.  Patent  Rights. 

Each  bidder  must  understand  that  he  is  to  protect  and  indemnify  all 
persons  acting  for  and  in  behalf  of  the  city,  state,  or  owner  for  any 
liability  which  may  be  claimed  by  any  party  on  account  of  any  patent 
rights  connected  with  any  of  the  materials,  articles,  or  processes  used 
or  employed  in  the  work  or  in  its  performance,  or  any  contemplated  or 
embraced  in  his  proposal. 

23.  Bid  for  a  Part  or  the  WJiole. 

Bidders  are  requested  to  state  whether  their  bids  must  be  considered 
as  a  whole  or  whether  a  part  thereof  may  be  accepted. 

24.  Tenders. 

Tenders  are  to  be  made  in  the  form  of  a  lump  sum,  which  sum  must 
be  taken  to  cover  the  cost  of  the  completion  of  the  work  in  every  re- 
spect, in  accordance  with  the  specifications  and  drawings. 

FORMALITIES   TO   BE   OBSERVED. 

152.  Propriety  of  Certain  Requirements  and  Restrictions. — Any  restric- 
tion or  requirement  imposed  upon  a  bidder  which  will  facilitate  the  business 
of  letting  the  contract  and  secure  uniformity  and  a  standard  for  comparison 


§  154.]  BIDS  AND  BIDDERS.  140 

of  the  bids,  and  not  entail  too  much  work  or  expense  upon  the  contractor, 
can  without  doubt  be  considered  reasonable,  and  within  the  discretion 
accorded  to  public  officers  by  our  courts.  Sucli  requirements  are  those 
which  insist  that  proposals  shall  be  made  upon  printed  forms  in  triplicate 
and  shall  be  delivered  by  a  certain  day  named,  and  that  the  prices  shall  be 
written  out  as  well  as  expressed  by  figures  to  give  greater  certainty  and  to 
guard  against  mistakes,  and  many  other  similar  requirements.  The  act  of 
the  board  in  directing  the  city  engineer  to  reject  fyids  for  public  im- 
provement unless  accompanied  by  an  offer  to  purchase  bonds  has  been  held 
not  a  ground  for  attacking  a  contract  actually  made,  it  not  appearing  that 
the  bids  were  influenced  by  that  fact.1 

153.  There  should  Be  a  Standard  for  Comparison  of  Bids. — In  order  to 
have  a  fair  and  equitable  comparison,  it  is  essential  that  all  should  have  the 
same  data  concerning  the  same  subject-matter,  and  that  the  bidders  one  and 
all  be  furnished  with  the  same  information  or  be  afforded  the  same  means 
of  acquiring  it. 

An  act  or  a  charter  which  requires  a  contract  "  to  be  given  to  the  lowest 
responsible  bidder "  has  therefore  been  held  to  render  illegal  and  void  a 
contract  awarded  on  plans  and  specifications  prepared  by  each  of  the 
different  bidders.  The  court  says  the  term  lowest  bid  necessarily  implies 
a  common  standard  by  which  to  measure  the  respective  bids,  and  that 
a  common  standard  must  necessarily  have  been  previously  prepared  of 
the  work  to  be  done  a  Such  a  letting  not  only  prevents  the  competition 
which  it  is  the  object  of  the  statute  to  secure,  but  furnishes  no  standard  by 
which  the  board  can  determine  the  lowest  bid,  and  gives  an  opportunity  for 
favoritism  in  awarding  the  contract.3 

154.  Full  Information  as  to  the  Work  should  Be  Furnished. — A  pro- 
vision that  certain  contracts  shall  be  let  to  the  lowest  responsible  bidder 
after   advertising   for  bids   requires   that   information   shall  be   given  to 
bidders   which  will  enable   them  to   bid  intelligently.*     They   should  be 
informed  either  by  the  notice  of  letting  or  by  proper  specifications  of  the 
amount  of  work  embraced  in  each  contract,  the  time  within  which  it  is  to 
be  completed,  the  manner  in  which  it  is  to  be  done,  and  the  quality  of  the 
materials  to  be  furnished.5 

It  is  the  manifest  duty  of  the  contracting  officer  or  board  which  is 
authorized  to  make  such  public  improvements  to  prepare  plans  and  specifi- 
cations, and  to  give  a  detailed  statement  or  estimate  of  the  work  and  of  the 

1  Ric-  v.  Board  of  Trustees  (Cal.),  4.0  Pac.  Rep.  622  [1890];  and  see  Kneeland  «.  Hos- 

Rep.  551.  mer,  20  Wis.  437. 

2Ura/e1  v.  Pittsburgh  (Pa.),  20  All.  Rep.  5  Kneeland  v.  Furlong,  20  Wis.  437;  see 

693  [1890];  but  see  State  v.  St.  Bernard  Peeples  v.  Byrd  (Ga.),  25  S.  E.  Rep.  677; 

(Ohio),  10  Ohio  Cir.  Ct.  Rep.  74;  and  and  see  Otis  v.  City  of  Chicago  (111.  Sup.), 

Connersville  v.  Merrill  (Ind.  App.),  42  N.  43  N.  E.  Rep.  715;  temble,  Guaranty  & 

E.  Rep.  1112.  T.  Co.  v.  Chicago  (111.  Sup.),  44  N.  E.  Rep, 

3  Ertle  v.  Leary  (Cal.).  46  Pac.  Rep.  1.  832  [1896]. 

4  Detroit  «.  Hosraer  (Mich.),  44  N.  W. 


150    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  155. 

kinds  and  quality  of  the  materials  required,  for  the  purpose  of  affording 
bidders  data  from  which  to  estimate  the  cost  of  the  undertaking  and  to 
induce  fair  and  honest  competition.1  It  has  been  held  that  the  bidder  can- 
not be  required  to  furnish  his  own  plans.2  The  notice  must  provide  for 
plans  and  specifications.3 

Such  provisions  in  a  city  charter  or  special  enactment,  that  contracts  for 
public  works  shall  be  let  to  the  lowest  responsible  bidder  after  advertising 
for  bids,  require  that  such  information  be  given  as  will  enable  the  bidder  to 
bid  intelligently,  and  that  the  same  requirements,  estimates,  and  specifica- 
tions be  given  each  and  all  the  bidders,  and  that  they  shall  bid  upon  the 
same  work  and  materials  and  under  the  same  specifications.4  Such  estimates 
and  specifications  must  be  definite  as  to  quantity  as  well  as  to  quality  of 
materials  required,  or  the  contract  will  be  void.5  They  should  be  rendered 
upon  a  cash  basis.6  Under  a  charter  requiring  ordinances  for  public  work 
to  specify  the  materials  to  be  used,  an  ordinance  is  void  if  it  fails  to  specify 
the  material,7  but  the  notice  need  not  specify  that  an  asphaltum  pavement 
proposed  is  to  be  of  a  certain  kind  of  asphaltum.8  When  the  statute 
requires  that  the  nature,  character,  locality,  and  a  description  of  the 
improvement  proposed  shall  be  set  forth,  an  ordinance  providing  for  the 
paving  of  a  street  or  the  construction  of  a  brick  sewer  "with  necessary 
manholes"  is  not  defective  because  it  fails  to  specify  the  location  of  the 
manholes  and  catch-basins.9  The  exact  amount  of  paving  composition 
required  per  square  yard  need  not  be  specified.10  An  act  that  requires  the 
advertisement  to  "  specify  briefly  the  locality  to  which  it  is  limited,  and  the 
time  in  which  it  must  be  completed,"  does  not  render  it  necessary  to  give 
the  dimensions  of  the  improvement  nor  the  materials  of  which  it  is  to  be 
built.11 

155.  The  Bid  Should  Contain  neither  More  nor  Less  than  is  Called  for 
by  the  Instructions,  Plans,  and  Specifications. — The  standard  adopted,  the 
necessity  of  requiring  bidders  to  conform  to  it,  and  to  include  neither  more 
nor  less,  is  at  once  apparent.  The  addition  of  one  single  item,  such  as  a 
different  kind  of  stone,  brick,  or  timber,  a  different  quality  of  work,  or  a 
longer  or  better  guaranty,  destroys  the  equality  and  renders  the  bid  worth- 
less for  comparison  with  the  others  which  conform  to  the  standard.12  It 

1  McBrian  v.  Grand  Rapi-ls,  56  Mich.  95;          8  Verdin  0.  St.  Louis  (Mo.  Sup  )  27  g 
and    set    N.  P.  Perrine  Co.  v.  Pasadena      W.  Rep  447;  Otis  v.  Chicago  (111  )  43  N 
(Cal.),  47  Pac.  Rep.  777.  E.  Rep.  715. 

2  People  v.  Com'rs,  4  Neb.  150.  9  City  of  Springfield  v.  Mathus   124  111 
s  Wilkinsfj.  Detroit,  46  Mich.  I'O.                 88  [1888];  Vane  V  City  of  Evanston  (111' 

4  City  of  Detroit  <o.  Hosmer  (Mich  ),  44  Sup.),  37  N.  E.  Rep.  901;  Cochran  v  Hvde 
N.  W.  Rep.  622.  Park  (111.),  27  N.  E.  Ren.  939  [18911 

5  Bigler  v.  New  York,  5  Abb.  N.  Cas.  10  Wood  v.  Chicago  (111  ),  26  N  E   Ren 
(N.  Y.)  51;  Reilly  v.  New  York,  54  N.  Y.  608. 

Super.  Ct.  463.  »  Main  0.  City  of  Fort  Smith  (Ark.)  55 

B  Kansas  Town  Co.  «.  Argentine  (Kans.  S.  W.  R.  801  [1887]-  and  see  Felker  v 

App.),  47  Pac.  Rep.  542  [1897].  New  Whatcom  (Wash.),  47  Pac.  Rep  505 

'  Verdin  v.  St.  Louis  "(Mo.  Sup.),  27  S.  [1897]. 

W.  Rep.  447.  *  Weed  <D.  Beach,56  How.Pr.(N.  Y.)  470. 


§  155.]  BIDS  AND  BIDDERS.  151 

cannot  benefit  a  contractor  or  builder  to  include  in  his  proposal  other  or 
more  or  better  labor  and  materials  than  are  specified  in  the  advertise- 
ment. Under  an  act  or  charter  requiring  the  work  to  be  advertised,  pro- 
posals received,  and  the  contract  to  be  given  to  the  lowest  bidder,  the  bid 
can  be  regarded  only  as  a  proposal  for  the  labor  and  materials  so  advertised 
for,  and  if  the  price  is  not  lower  than  that  of  any  other  bidder  whose  pro- 
posal embraces  only  the  labor  and  materials  called  for  in  the  advertisement, 
he  is  not  entitled  to  have  the  contract  awarded  to  him.1 

Bids  submitted  according  to  certain  specifications  which  contain  a  war- 
ranty of  durability  for  six  years  cannot  be  compared  with  a  bid  that  con- 
tains a  warranty  for  more  than  six  years.  If  the  additional  warranty  were 
considered  and  influenced  the  award  to  one  who  was  not  the  lowest  bidder, 
the  contract  will  be  void.2  When  bids  were  asked  for  a  storage  reservoir 
capable  of  holding  a  water-supply  for  100  days'  delivery  at  the  rate  of 
50,000,000  gallons  per  diem,  the  contract  was  not  lawfully  awarded  to  a 
bidder  solely  because  of  his  having  offered  to  provide  a  storage  capacity 
sufficient  for  250  days.3  The  same  was  held  of  a  case  where  a  contract  was 
awarded  to  one  who  was  not  the  lowest  bidder,  but  who  had  furnished 
specimens  which  were  not  called  for  in  the  notice  asking  for  bids,  the 
contract  having  been  given  to  him  because  of  the  greater  fitness  for  use  as 
shown  by  the  samples.  The  contract  was  declared  void,  as  contrary  to  the 
charter.4  Samples  or  specimens  furnished  cannot  be  compared,  and  the 
lowest  price  then  determined  by  reference  to  the  comparative  fitness  of  the 
specimens,  unless  the  advertisement  has*  asked  for  samples  and  proposals  to 
do  work  according  to  such  samples,  so  that  all  should  bid  with  the  same 
understanding.5  When  samples  of  materials  which  the  bidder  will  use 
have  been  furnished  as  required  by  the  instructions  to  bidders,  and  the 
sample  of  the  lowest  bidder  is  not  acceptable  to  the  engineer  as  provided  in 
the  contract,  he  cannot  demand  the  award  of  the  contract,  nor  can  it  be 
given  to  him,  even  though  he  does  offer  to  use  brick  of  another  kind  which 
comes  up  to  the  requirements  of  the  specifications.6 

While  the  acts  and  requirements  of  a  board  of  public  works  are  subject 
to  review  by  the  courts,  yet,  the  acts  being  discretionary,  the  courts  do  not 
interfere  unless  the  motive  be  fraudulent  or  does  positive  injury.  They 
tolerate  restrictions  and  requirements  for  which  they  can  assign  no  just 
cause,  and  that  are  frequently  burdensome  to  bidders.7  * 

1  Boren  v.  Com'rs  of  Darke  Co.,  21  Ohio  2  State  v.  City  of  Trenton,  49  N.  J.  Law 

St.  311   [1871];  but  see  Weed  v.   Beach,  339. 

56  How.  Pr.  (N.Y.)  470,  where  it  was  held  3  Van  Reipen  v.  City  of  Jersey  City 

that  when  state  officers  had  made  an  effort  (N.  J.  Sup.),  33  Atl.  Rep.  740. 

to  obtain  bids  in  a  certain  form  and  had  4  State  v.  City  of  Trenton,  supra. 

failed  in  the  attempt,  that  they  might,  as  5  Shaw  v.  Trenton,  49  N.  J.  Law  339 

against  such  faulty  bidders,  examine  all  [1887]. 

the  bids,  and  according  to  their  best  judg-  6  Hermann  v.  State,  11  Ohio  Cir.  Ct.  Rep. 

ment  award  the  contract  to    the  lowest  503. 

[regular]  bidder.  *  Semble,  Re  Marsh,  83  N.  Y.  431. 

*  See  Sec.  146,  supra. 


152    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  156. 

When  the  bid  is  accepted  the  bidder  is  bound  only  by  the  specification 
shown  him  at  the  time  he  makes  his  bid.1  If  other  specifications  are  shown 
him  when  he  executes  the  contract  and  he  agrees  thereto,  they  become  a 
part  of  the  contract  and  he  is  bound  by  them.2  Statements  or  explanations 
by  members  of  the  board  or  its  clerk  will  not  be  accepted  in  contradiction 
to  the  terms  of  the  formal  invitation  to  bidders.  Clerks,  engineers,  and 
individuals  have  no  power  to  vary  the  terms  of  the  advertisement  nor  to 
volunteer  additional  information  not  given  to  all  bidders.  If  a  contractor 
acts  upon  representations  by  such  unauthorized  persons,  it  seems  he  does  it 
at  his  peril,  and  must  take  the  consequences.3 

156.  Contract  Must  be  Strictly  According  to  Terms  of  Advertisement, 
Plans,  and  Specifications  by  which  Bids  were  Invited.— It  is  obligatory  upon 
the  officers  of  a  city  or  state  to  execute  the  contract  strictly  in  accordance 
with  the  terms  and  specifications  by  which  the  bids  were  made.4     The 
letting  of  a  contract  containing  provisions  materially  more  favorable  to  the 
contractor  than  the  requirements  under  which  the  bids  were  invited  and 
received  destroys  the  benefit  of  the  competition  intended  to  be  realized  by 
the  statute.     Such  contracts  are  illegal,  and  their  performance  may  be  en- 
joined.5    Neither  the  quantity  nor  quality  of  the  work  or  materials  nor  the 
conditions  prescribed  can  be  changed,  nor  new  burdens  imposed,  nor  any 
alterations  made,  nor  any  new  undertakings  or  pledges  of  the  contractor 
be  considered  in  awarding  the  contract.8     So  when  the  instructions  require 
that  the  price  paid  for  earth  excavation  should  be  one  fourth  that  bid  for 
rock  excavation,  it  was  held  not  improper  and  that  a  bid  which  named 
81.77-J-  for  rock  and  44f  cents  for  earth  might  be  rejected  for  not  conform- 
ing to  the  specifications,  the  price  for  earth  works  not  being  precisely  one 
fourth  that  of  rock  excavations.7 

The  making  of  a  contract  to  pave  a  street  37  feet  wide,  when  the  bids 
were  received  for  a  street  42  feet  wide,  omitting  a  space  of  five  feet  between 
the  rails  of  a  street-car  track  which  it  was  the  duty  of  the  car  company  to 
keep  in  repair,  was  held  not  such  an  irregularity  as  would  warrant  the 
setting  aside  the  assessments  in  view  of  the  fact  that  the  specifications  did 
include  the  space  between  the  rails,  and  that  the  cost  thereof  was  not 
included  in  the  assessment,  and  there  was  no  showing  of  injury  resulting  to- 
property-own  ers.8 

157.  When  Amount  of  Work  Cannot  be  Determined.— When  plans  and 
specifications  have  been  made  and  estimates  prepared  of  the  amount  and 

1  Hobbso.  Texas,  etc.,  R.  Co.  (Ark.),  55          5  Wickwire    v.    City  of  Elkhart  (Ind. 
S.  W.  Rep.  586  [1887];  Hughes  v.  Clyde,       Sup.),  43  N.  E.  Rep.  216. 

41  Ohio  St.  339.  6  Nash  v.  St.  Paul,  11  Minn.  174;  People 

2  Elgin  v.  Joslyn   (111.),  26  N.  E.  Rep.  «.  Board   of   Improvement,  43  N.  Y.  257;. 
1090  [1891];  see  also  108  111.  323,  and  118  Nichols  v.  State  (Tex.),  32  S.  W.  R«  p.  452. 
111.  567.  7  Matter  of  Petition  of  March,  83  N.  Y. 

3  Langley  v.  Harmon  (Mich.),  56  N.  W.  435  [1881]. 

Rep.  761;  Littler  v.  Jayne  (111.),  16  N.  E.          8  Voght  v.  Buffalo  (N.  Y.  App.),  31  N.  E, 
Rep  374  [1888].  Rep.  340,  reversing  14  N.  Y.  Supp.  759. 

4  Smith  v.  Mayor,  10  N.  Y.  504. 


§  157.]  BIDS  AND  BIDDERS.  153 

kind  of  work  and  materials  required,  it  becomes  a  comparatively  easy 
matter  to  get  bids  upon  the  same  basis;  but  when  the  quantity  and  charac- 
ter of  the  work  cannot  be  determined,  the  standard  of  comparison  must  be 
an  approximate  one.  In  such  cases  it  is  not  only  prudent  but  necessary  to 
so  describe  the  work  that  a  comparison  can  be  made  of  the  several  pro- 
posals without  knowing  the  aggregate  and  exact  cost  of  the  whole  work. 
This  is  usually  accomplished  by  inviting  bidders  to  name  prices  per  unit  of 
measure,  the  quantities  being  given  approximately  only,  to  enable  the  con- 
tractor to  determine  at  what  price  he  will  undertake  a  job  of  the  same  size 
estimated.  In  such  cases  it  is  customary  and  prudent  to  insert  a  statement 
that  the  quantities  named  are  approximate  only,  and  that  the  contractor 
must  be  his  own  judge  as  to  the  correctness  of  the  estimate  given,  both  as  to 
quantity  and  kind.* 

Every  important  item  contemplated  in  the  work  must  be  included  in 
the  advertisement  and  specifications  under  which  tenders  were  made.  A 
part  of  the  work  may  not  be  given  outright  to  one  person  or  party,  nor  can 
a  price  be  fixed  for  a  considerable  part  of  the  work  and  the  remainder  be 
given  for  competition.  A  contract  which  fixed  the  expense  of  part  of  the 
work  by  agreement  between  the  contractor  and  the  commissioner  of  public 
works,  and  not  by  competitive  bidding,  as  required  by  law,  is  void  as  to 
such  part.1  A  price  cannot  be  fixed  for  rock  excavation  in  an  advertise- 
ment for  proposals  for  constructing  a  sewer,  because  it/ is  in  violation  of  the 
charter  of  the  city  which  requires  contracts  for  work  and  supplies  to  be 
founded  on  sealed  proposals  and  given  to  the  lowest  bidder.2 

It  is  a  violation  of  the  law  for  public  officers  to  test  the  bids  by  a  com- 
parison which  omits  a  substantial  part  of  the  work  to  be  contracted  for> 
A  contract  awarded  upon  a  comparison  of  bids  which  omitted  an  estimatb 
of  the  rock  excavation  anticipated  to  be  met  was,  therefore/  held  illegal  and 
void.3 

It  has  been  held  that  the  ratio  of  the  price  of  rock  excavation  to  that 
of  earth  excavation  might  be  fixed  as  four  to  one.4  A  minimum  price  to  be 
paid  for  labor  cannot  be  fixed,  and  a  contract  awarded  upon  the  basis  of 
such  a  specification  is  in  violation  of  the  statutory  provision  requiring  work 
to  be  awarded  to  the  lowest  bidder.5 

Extra  work  that  has  not  been  mentioned  in  the  announcement  of  the 
work  and  prices  named  in  the  proposals  cannot  be  ordered  unless  excepted 
by  the  statute  or  especially  provided  for  in  the  charter.  Thus  an  accept- 
ance of  a  bid  to  do  rock  excavation  and  other  work  which  omitted  the 
consideration  of  rock  excavation,  and  undertook  to  pay  what  the  rock 

1  Mutual  Life  Ins.  Co.  r.  New  York  (N.  City  (111.),  33  N    E.  Rep.  602  ;  Ee  Mahan, 

Y.  App.),  39  N.  E  Rep.  386.  20  Hun  (N.  Y  )  301. 

'Merriam    on   Petition,    84  N.    Y.    596          3  Brady  v.  Mayor,  20  N.  Y.  312  [1859]. 
[1881];  see  also  Village   of  Hyde   Park  v.          *Re  Marsh,  83  N.  Y.  435  [1881]. 
Carton,  132  111  100  ;  Lake  Shore  R.  Co.  v.          5  Frame  v  Felix  (Pa.),  31  Atl.  Rep.  375. 

*  See  Sec.  151,  art.  13,  supra. 


154    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  157. 

excavation  was  reasonably  worth  as  extra  work,  was  declared  against  the 
policy  of  the  law.1  Under  a  contract  by  a  city  which  provided  that  the 
architect  might  direct  deviations  and  the  increased  cost  be  added  to  the 
agreed  price  it  was  held  that  the  city  was  not  bound  by  the  architect's 
promise  and  order  for  piling,  necessary  for  securing  a  firm  foundation, 
because  it  had  not  been  advertised  and  mentioned  in  the  specifications  for 
the  work  and  proposals  received  for  its  construction.2 

The  contract  as  drawn  and  executed  must  not  include  extra  work,  nor 
contain  other  or  different  classifications  than  those  competed  under  and 
included  in  the  proposals.3  The  prices  must  not  be  changed  when  the  con- 
tract is  given  from  those  named  in  the  bid,  nor  provisions  made  for  extra 
v/ork,  as  an  allowance  of  15  per  cent,  additional  to  the  actual  cost,  when  no 
such  provision  has  been  put  in  the  notice  for  proposals.  If  such  acts  are 
committed,  they  may  render  the  contract  void  and  leave  the  contractor  with- 
out any  recovery  for  the  work  he  has  done.  "  For,"  says  the  court,  "  though 
this  principle  of  the  law  may  work  hardships,  yet  it  is  better  that  an  indi- 
vidual should  occasionally  suffer  from  the  mistakes  of  public  officers  or 
agents  than  to  adopt  a  rule  which  by  improper  combinations  or  collusions 
might  be  turned  to  the  detriment  or  injury  of  the  public." 4 

It  does  not  matter  that  the  bid  is  the  lowest,  or  that  it  is  less  than  the 
amount  appropriated  specially  for  the  work;  the  difference  between  the  sum 
bid  and  the  amount  appropriated  cannot  be  recovered,  as  such  additional 
contract  is  not  binding  on  the  state,  because  not  let  in  the  manner  provided 
by  law.5  However,  it  has  been  held  in  New  York  State  that  when  the 
appropriation  for  a  public  work  is  limited,  and  a  contract  is  made  for  it 
according  to  a  plan  to  be  adopted,  and  with  a  proviso  that  the  cost  shall  be 
limited  to  a  certain  sum,  if  the  price  agreed  upon  is  within  that  amount  it 
is  a  valid  contract,  even  though  it  reserves  authority  to  make  such  changes 
of  detail  as  may  be  necessary,  and  authorizes  the  engineer  directing  the 
work  to  determine  the  price  of  the  extra  work  required.8. 

Any  property-owner  or  taxpayer  may  maintain  a  suit  to  enjoin  the  prose- 
cution of  work  under  an  illegal  contract  or  the  payment  of  the  prices  specified, 
even  though  it  be  conceded  that  the  suit  is  brought  in  lieu  of  a  suit  by  an 
unsuccessful  bidder.7 

Extras  cannot  be  ordered,  for  if  that  were  allowed  the  statute  would  be 
no  safeguard  to  the  public  interests.  The  contract  might  include  but  a 

1  McBrian  «.  Grand  Rapids,  56  Mich.  95  93  U.  S.  247-257,  96  U.  S.  691,  2  Clifford 
[1885]  ;  Brady  v.   Mayor,   20  N.  Y.    313  590;  Texas  Transp.  Co.  «.  Boyd,  2  S.  W. 
[1859].  Rep.  364. 

2  Stuart  v.   Cambridge,  125  Mass.  102  ;         5  Nichols  v.  State  (Tex.),  32  S.  W.  Rep. 
Litler  v.  Jayne  (111.),  16  N.   E.  Rep.  374  452. 

[1888]  ;    but   see    Fleming    v.   Suspension  6  Kingsley  v.   Brooklyn,  78  N.  Y.  200 

Bridge,  92  N.  Y.  368  [1883].  [1879]. 

3Tullockfl.  Webster  County  (Neb.),  64  7Moynahan  v.  Birkett,  31   N.  Y.  Supp. 

N.  W.  Rep.  705.  ?93 •  Mazet  v.  Pittsburgh  (Pa.),  20  All.  Rep. 

4  Dickinson  v.  City  of  Poughkeepsie,  75  693  [18901. 
N.  Y.  65  [1878] ;  and  see  also  11  Minn,  174, 


§  157.]  BIDS  AND  BIDDERS.  155 

part  of  the  work,  while  a  larger  and  more  profit-paying  part  could  be  ordered 
as  extras.1  Thus  under  a  contract  awarded  by  a  village  to  the  lowest  bidder 
to  do  flagging,  paving,  and  curbing,  the  village  having  undertaken  to  do  the 
necessary  grading  and  to  furnish  the  sand  and  gravel,  it  was  held  that  the 
contractor  could  not  recover  for  the  sand  and  gravel  he  had  furnished  in 
obedience  to  a  resolution  by  the  trustees  of  the  village  requiring  him  to  do 
so,  as  the  resolution  was  in  violation  of  the  city  charter,  which  required  that 
sealed  proposals  for  work  should  be  advertised  for  and  the  contract  awarded 
to  the  lowest  bidder.8  It  has  been  held  that  where  a  contract  was  let  for  the 
laying  of  Nicholson  pavement  (patented)  and  ordinary  stone  cross-walks, 
after  proposals  for  Nicholson  pavement  only  the  assessment  for  the  work 
could  be  vacated.3  Yet  in  another  case  it  was  held  that  where  a  contractor 
did  work  necessary  to  carry  out  his  contract,  either  as  extra  work  or  to 
meet  exigencies  unforeseen  when  the  contract  was  made,  he  was  entitled  to 
recover  therefor  on  a  quantum  meruit,  though  the  city  charter  provide  that 
if  any  work  shall  involve  an  expenditure  exceeding  seventy-five  dollars  it 
shall  be  done  by  contract  let  to  the  lowest  bidder.4 

The  contract  must  be  confined  to  the  work  and  materials  contained  in 
the  proposals.  Nothing  can  be  added  or  omitted  without  due  notice  having 
been  given,  as  the  object  of  the  law  is  to  secure  competition  and  the  benefits 
to  be  derived  from  it.  The  contract  must  be  the  same  that  was  advertised.5 
A  change  by  public  officers  of  a  foot  in  the  depth  to  be  dug  for  curbing, 
and  permission  to  the  contractor  to  appropriate  stone  that  was  by  the  speci- 
fications to  be  used  for  filling  in  a  certain  place,  he  furnishing  earth  which 
could  be  used  on  the  street,  are  unauthorized  and  void.  The  proposals 
made  by  the  contractor  and  the  specifications  form  the  only  basis  of  a  con- 
tract, and  no  contract  can  be  made  under  any  other  terms. 

If  the  contractor  execute  work  not  in  strict  conformity  to  such  specifica- 
tions and  proposals,  he  is  entitled  to  no  compensation  for  his  work,  for  there 
is  no  contract,  and  none  can  be  implied.8  A  recent  case  has  even  decided 
that  where,  after  letting  the  contract  for  grading  a  street  according  to  plans 
and  estimates,  an  ordinance  was  passed  changing  the  grade,  but  no  new  plan 
or  contract  was  made,  though  the  grading  was  done  in  accordance  with  the 
last  established  grade,  an  assessment  for  such  work  was  invalid.7  A  change 
in  the  lines  or  levels  which  lessens  the  amount  and  the  cost  of  the  work  may 
render  the  contract  inoperative,  and  invalidates  the  assessment.8  A  board  of 

1  McBrian  v.  Grand  Rapids,  56  Mich.  95.          6  Bonesteel  v.  The  Mayor,  22  N.  Y.  162 

2  Parr  v.  Village  of  Greenbush,  11  New      [I860] ;    but  see  Barkley  v.    Oregon  City 
York  246;  and  see  also  76  N.  Y.  463  ;  but      (Or.),  33  Pac.  Hep.  978. 

see  Bryson  v.   Johnson  Co.  (Mo.),    13  S.          7  City  of  Argentine  v.  Simmons  (Kan.), 

W   Rep.  239  ;  McBrian  v.  Grand  Rapids,  37  Pac.  Rep.  14  ;    Argentine  v.  Dagett,  37 

56  Mich.  95  [1885],  and  other  cases  reviewed  Pac.    Rep.  14;  semble  Hague  v.  Philadel- 

iherein.  phia,  48  Pa.  St.  527  [1865]  ;  but  see  Fuller 

3  Re  Eager,  46  N.  Y.  100.  •».  Grand  Rapids  (Mich.),  63  N.  W.  Rep. 

4  Abells  v.  City  of  Syracuse  (Sup.),  40  N.  530. 

Y.  Supp.  233.    "  8  Warren  v.  Chandos  (Cal.),  47  Pac.  Rep. 

5  Nash  v.  St.  Paul,  11  Minn.  174.  132. 


156     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§158. 

public  works  has  no  authority  to  exact  from  the  contractor  a  bond  that  the 
pavement  will  last  for  five  years  where  it  is  not  required  by  the  resolution  of 
intention.1  If,  as  is  sometimes  the  case,  the  charter  of  the  city  provides  that 
repairs  shall  be  paid  for  by  the  city,  and  improvements  by  the  property- 
owners  benefited,  the  same  to  be  let  to  lowest  bidder;  an  ordinance,  adver- 
tisement, and  letting  of  a  contract  for  the  construction  and  maintenance 
(or  repair)  of  a  street  together  and  to  be  paid  for  by  either  party  alone,  is 
void,  being  in  violation  of  the  charter.2 

158.  Right  to  Make  Changes  and  Alterations  Reserved.— Whether  public 
officers  can  reserve  the  right  to  make  changes  and  alterations  in  the  specifi- 
cations by  giving  notice  of  such  reservation  in  the  advertisement  for  proposals 
may  well  be  doubted.     Certainly  not  if  the  work  were  for  a  lump  sum,  nor 
under  any  circumstances  which  might  foster  favoritism  or  lessen  the  obliga- 
tions or  work  which  the  contractor  had  assumed.     Labor  and  materials  paid 
for  by  the  unit  of  measurements  must  be  subject  to  such  changes,  and  it  can 
work  no  hardships  to  the  public  nor  to  the  contractor.    Even  when  it  is  pro- 
vided in  the  contract  that  the  contractor  shall  make  any  alterations  in  the- 
form,  dimensions,  or  materials  when  directed  by  the  board  of  public  works ;. 
that  the  work  shall  be  prosecuted  in  such  order  and  at  such  places  as  the- 
board  of  public  works  may  direct;  that  the  excavations  be  made  to  depths 
shown  on  profile  and  plans  on  file,  of  such  widths  and  in  such  directions  as 
may  be  necessary;  that  any  work  required  to  be  done  that  is  not  specified  shall 
be  done  in  accordance  with  the  directions  of  such  board,  it  is  held  that  the- 
board  was  not  authorized  to  order  any  material  change  in  the  plan  as  to  loca- 
tion or  course  of  a  sewer  (which  was  being  done  at  a  price  per  linear  foot), 
without  the  approval  of  the  city  council.8   If  in  the  construction  of  works  it  is 
anticipated  that  difficulties,  requiring  changes,  will  be  encountered,  or  that 
the  work  may  become  much  more  burdensome,  as  by  the  meeting  of  quick- 
sand, hard-pan,  or  rock  excavation,  which  would  largely  increase  the  cost,  and 
the  extent  of  which  it  may  be  impossible  to  ascertain  in  advance;  such  contin- 
gencies should  be  mentioned  in  preparing  the  specifications  and  contracts,  and 
their  payment  be  provided  for,  so  that  they  may  be  taken  into  account  by  bid- 
ders in  making  their  proposals  by  the  cubic  yard,  linear  foot,  unit  weight,  etc.* 

159.  Instances  Where  Contract  has  been  Sustained. — The  fact  that  plans 
for  street  improvement  were  in  the  alternative  is  immaterial  in  the  absence 
of  proof  that  anyone  was  misled  or  prevented  from  bidding,  or  that  the  cost 
of  the  work  done  was  enhanced  thereby.5 

Such  contracts  are  divisible.     When  a  contract  has  been  let  for  work,  a 

1  McAllister  v.  City  of  Tacoma  (Wash.),       Rep.  336. 

37  Pac.  Rep.  447.  *  McBrian  v.  Grand  Rapids,  56  Mich.  95^ 

2  Verdin  v.  St.   Louis  (Mo.),  33  S.    W.  Insley  ®.  Shepard,  31  Fed.  Rep.  869  [1887]; 
Rep.  480;  and  see  Santa  Cruz  R.  P.  Co.  v.  accord  Kingsley  v.  Brooklyn,    78  N.  Y. 
Broderick  (Cal.),  45  Pac.  Rep.  863;  and  200  [1879] 

Cole  v.  People  (111.),  43  K  E.  Rep.  607.  5  Gilmore  v.  City  of  Utica  (K  Y.  App.),  29- 

3Compau  v.  Detroit  (Mich.),  64  N.  W.       KE.Rep.841,  o^rm^lSN.Y.Supp.  274. 


•§  160.]  BIDS  AND  BIDDERS.  157 

part  of  which  has  been  legally  authorized  and  contracted  for,  and  another 
part  of  which  is  illegal  and  unauthorized,  the  contractor  may  recover  for  that 
which  was  done  in  pursuance  of  the  charter  and  according  to  law.1  When 
ti  contract  is  in  violation  of  the  charter  of  a  city  as  to  a  part  of  the  work,  it 
will  render  the  assessment  for  the  work  so  far  void,  as  the  work  done  was  con- 
trary to  the  provisions  of  the  charter,  and  will  not  furnish  a  ground  for  vacat- 
ing the  whole  assessment.2  It  may  be  reduced  by  the  amount  which  it  may 
have  been  increased  by  reason  of  fraud  or  substantial  error  or  irregularity.3 

160.  Works  Whose  Cost  Exceeds  a  Certain  Amount  Within  the  Statute, 
Charter,  or  Ordinance. — The  question  often  comes  up  as  to  whether  the 
statute  or  charter  requires  all  work,  however  insignificant,  to  be  included  in 
the  specifications  and  contract,  and  if  it  includes  alterations  and  additions 
.and  extras  from  whatever  cause.  The  delay  and  annoyance  resulting  from 
such  a  requirement  would  be  expensive  and  aggravating  beyond  measure  if 
it  were  necessary  to  advertise  and  wait  for  proposals  for  every  small  extra 
item  or  minor  change  required  on  or  in  works.  This  trouble  is  usually 
obviated  by  a  clause  in  the  act  or  charter  that  only  such  contracts  for  mate- 
rials and  work  whose  cost  is  more  than  a  specified  sum,  e.  g.}  $500,  shall  be 
advertised  and  let  to  the  lowest  bidder.4 

The  addition  of  such  a  clause,  if  the  sum  is  made  large,  enables  public 
officers  to  let  work  in  parts  and  to  evade  the  law,  thus  defeating  its  very 
object.  Courts  are  alive  to  this  fact,  and  seek  to  require  the  most  scrupu- 
lous care  and  strictest  honesty  of  all  parties.  Evidence  of  dishonest  prac- 
tices will  be  construed  against  the  contractor  and  in  favor  of  the  public. 

When  a  certain  amount  is  specified  as  the  limiting  cost  of  work  that  may 
"be  let  without  advertising  for  proposals,  it  must  not  be  exceeded.  Under  an 
act  requiring  "  any  expenditure  of  more  than  $2500,  to  be  let  to  the  lowest 
bidder  after  advertising  for  bids/'  an  informal  contract  for  work  and  mate- 
rials, including  eight  bronze  statues,  to  cost  more  than  $2500,  without 
advertising  for  bids,  was  declared  void;  and  it  was  held  that  they  could  not 
tie  included  under  an  advertisement  and  specification  "  for  the  iron  inner 
dome  and  other  ornamental  ironwork,"  nor  did  verbal  explanations  made  at 
the  time  the  proposal  was  made  remedy  the  omission  of  them.5 

When  proposals  have  been  made  to  furnish  labor  and  materials  for  a 
structure  according  to  a  schedule  of  prices  for  specific  qualities,  and  a  con- 
tract was  subsequently  entered  into,  to  erect  the  structure  for  a  certain  sum 
•of  money,  "  being  the  aggregate  cost  at  the  prices  specified  in  the  said  pro- 
posals," it  was  held  that  the  statement  of  the  cost  was  intended  only  as  an 

1  Texas  Trausp.  Co.  v.  Boyd,  2  S.  W.  4It  may  be  doubted  if  $500  is  an  appro- 
Rep.  364  [1886]  ;  see  also  InreMcCormick,  priate  sum.     See  Littler  v.  Jayne  (111.),  16 
•60  Barb.  128  [1870],  not  fatal  to  tlie  assess-  K  E.  Rep.  374  [1888],  where  the  act  was 
ment.  amended,  making  the  sum  $2500  instead 

2  Merriam  in  Petition,  84  N.  Y.  596  [1881].  of  $500,  which  seems  nn  opposite  extreme. 

3  In  re  Anderson,  17  N.  E.  Rep.  209  (N.  5  Littler  v.  Jayne  (111.),    16  N.  E.  Rep. 
Y.  1888);    In  re  McCorraack,  60  Barb.  128  374  [1888]. 

11870]. 


158     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  161. 

estimate,,  and  that  the  intention  was  to  pay  the  prices  named  for  such  mate- 
rials and  labor  as  were  actually  furnished.1 

161.  What  Work  Comes  Within  the  Statute.  —A  charter  of  a  city  that 
requires  that  "all  contracts  for  doing  work  and  furnishing  materials  for  an 
improvement  shall  be  given  to  the  lowest  bidder  "  was  held  not  to  apply  to  a 
contract  to  furnish  hose  to  the  fire  department;3  but  a  contrary  construction 
was  put  upon  the  same  charter  the  following  year,  when  it  was  held  that  a 
charter  that  required  that  all  contracts  should  be  awarded  to  the  lowest  bidder 
did  include  a  contract  to  purchase  fire-hose,  and  that  an  award  of  a  contract 
contrary  to  the  charter,  and  including  additional  qualifications  not  included 
in  the  estimate  and  specifications  advertised,  was  void.5  The  work  of  clean- 
ing streets  of  a  city,  and  of  supplying  it  with  water,  have  been  held  to  come- 
within  the  prohibitions  of  the  charter  against  making  contracts  for  work 
without  previously  advertising  for  proposals.4  A  statute  which  requires  all 
contracts  for  the  improvement  of  roads  to  be  let  to  lowest  bidder  has  been 
held  to  include  contracts  for  repairs  to  permanent  bridges  and  culverts,5  and 
cells  of  a  jail  have  been  held  to  be  a  part  of  a  public  building.6 

The  removal  of  garbarge  at  $800  per  month  was  held  not  to  be  within  a 
statute  requiring  "  that  work  necessary  to  be  done  to  complete  a  particular 
job  and  involving  more  than  $1000  "  should  be  let  to  the  lowest  bidder,  as 
the  work  in  question  was  not  done  to  complete  a  particular  job  and  did  not 
necessarily  involve  an  expenditure  of  $1000  or  more.7  If  it  be  provided  that 
no  contract  or  purchase  involving  an  expenditure  of  more  than  $1000  shall  be 
made  without  first  advertising  for  bids,  an  exchange,  without  advertising  f<  r 
bids,  of  pumping-engines  incurring  an  expenditure  of  more  than  $10,000  will 
not  bind  the  city,  even  though  it  is  made  by  order  of  the  city  council  authoriz- 
ing the  board  to  make  such  an  exchange,  such  order  being  held  not  to  abro- 
gate the  terms  of  the  ordinance.8  So  under  a  contract  for  the  construction 
of  a  public  building  a  substitution  of  another  kind  of  work  which  increases 
the  amount  to  be  paid  for  the  building  by  more  than  $1000  cannot  be  made.' 
The  cost  of  the  materials  substituted,  it  seems,  is  not  to  be  added  to  the  cost 
of  furnishings  whose  place  they  take.10  Verbal  explanations  that  certain 
work  will  be  required  and  certain  materials  must  be  furnished  are  not  suf- 
ficient to  include  items  not  mentioned  in  the  advertisement  or  specifications, 
though  they  be  a  part  of,  or  properly  belong  to,  the  structure  advertised. 
They  cannot  be  included  if  their  cost  exceed  the  statutory  limit." 

1  Swift  v.  New  York,  26  Hun  fN.  Y.)  508,          6  Ertle  v.  Leary  (Cal.),  46  Pac.  Rep.  1. 
reversed  by  Court  of  Appeals  89  N.  Y.  52.  7  Swift  v.  Mayor,  83  N.  Y.  528. 

2  City  of  Trenton  «.  Shaw  (N.  J.),    10          8  Worthingtou  v.  Boston  (Mass.),  41  Fed. 
Atl.  Rep.  243  [1887].  Rep.  23  [1890] 

3  State  v.  City  of  Trenton  (N.   J.),  12          9  Brady  v.  New  York,  55  N.    /.  Super. 
•Ail  Rep.  902  [1888].  Ct.  45;    and  see    Sadler    v.    Eureka  Co. 

4  State  v.  Kern,  51  N.  J.  Law  259  [1889],       Comm'rs.,  15  Nev.  39;  and  Swift  v.  Mayor, 
Water;    Davenport  0.    Kleinschmidt,    13      83  N.  Y.  528. 

Pac.    Rep.    249,  Water;    Frame   v.   Felix          10  Brady  v.  New  York,  112  N.  Y.  480. 
(Pa.),  31  Atl.  Rep.  375  n  Littler  v.  Jayue  (111.),  16  N.  E.  Rep. 

*  Follmer  v.  Commissioners,  6  Neb.  204.       374  [1888]. 


UNIVERSITY  OP  CALIFORNIA, 
DEPARTMENT  OF  CIVIL  ENGI  NEERI  NQ 


§  163.]  BIDS   AND  BIDDERS. 

162.  State  or  City  to  Furnish  Certain  Things  at  a  Specified  Price.—  It 

is  sometimes  the  practice  of  public*  corporations  to  purchase  a  certain  brand 
or  make  of  materials,  the  engineer  and  council  being  satisfied  that  they 
are  the  best,  or  it  may  be  necessary  to  secure  conformity  thoughout  a  system 
of  works.  When  a  city  has  contracted  for  supplies  under  such  circumstances 
or  has  them  in  stock,  it  may  require  the  contractor  to  purchase  them  at 
the  price  paid  by  the  city  and  use  them  in  the  works.3 

163.  Contracts  for  Patented  Articles  or  Materials  of  a  Special  Manufac- 
ture. —  If  proposals  are  invited  in  good  faith,  it  has  been  held  that  a  city  may 
contract  for  the  use  of  such  materials  as  it  deems  best,  though  such  materials- 
are  the  subject  of  private  ownership   or  the  product  of  exclusive  manufac- 
ture, or  the  methods  of  preparing  them  are  covered  by  patents.2 

An  ordinance  providing  for  paving  a  street  with  a  particular  kind  of 
asphalt  in  which  there  is  a  monopoly  is  not  void,  though  the  city  charter 
provides  for  letting  contracts  to  the  lowest  responsible  bidder,3  the  council 
having  the  right  to  reject  the  bid  if  it  is  exorbitant;  the  fact  that  there  is  a 
monopoly  does  not  require  that  it  be  assessed.4  If  the  thing  needed  for  pub- 
lic use  is  part  of  a  patented  article  and  can  be  bought  only  in  one  place,  it  is 
sometimes  held  that  the  article  need  not  be  advertised.5 

In  New  York  state  it  has  been  held  that  the  provision  which  entitles  the 
person  making  the  lowest  estimate  to  have  the  contract  awarded  to  him  does 
not  apply  to  estimates  for  patented  articles  or  processes.6  Some  states  hold 
to  the  view  that  such  contracts  are  not  prohibited;  but  the  tendency  of  the 
courts,  according  to  Judge  Dillon,7  is  that  the  statute  prohibits  any  contract 
that  cannot  be  advertised  or  let  in  the  manner  it  prescribes,  and  he  cites 
cases  in  which  it  has  been  held  that  a  contract  for  a  patented  pavement  with  a 
person  who  had  the  exclusive  right  to  lay  the  same  was  void.8  Mr.  McKinney, 
in  the  American  and  English  Encyclopaedia  of  Law,  says  that  the  majority 
of  the  cases  take  the  same  view,  and  hold  that  the  statutory  prohibition  ap- 
plies to  patented  articles,  citing  numerous  cases.9 

It  is  impossible  to  tell,  except  in  states  where  it  has  been  already  decided, 
what  law  would  be  sustained,  and  engineers  or  contractors  would  do  well  to 
take  good  counsel  if  the  question  come  up  in  their  business.  The  cases  which 
hold  that  materials  or  processes  which  are  patented  or  are  the  subject  of  a 


1Merriaoi    in   Petition,    84    N.   Y.  596  20  All.  Rep.  646;  accord  TLobnTtv.  Detroit, 

[1881].  17  Mich.  246;  Matter  of  Petition  of  Dugro' 

2  City  of  Newark  v.  Bomel  (N.  J.),  31  50  N.  Y.  513;  but  see  Dolan  v.  Mayor  of 
All.  Rep.  408;  N.  P.  Perrine,  etc.,  Co.  v.  N.  Y.,  4  Abb.  Pr.  N.  S.  (N.  Y.)  397. 
Quackenbush  (Cal.),   38    Pac.    Rep.   533;          6 Peoples.  Van  Nort,  65  Barb.  (N.  Y.) 
State  v.  Board  of  Comm'rs  (Kan.),  45  Pac.  331;  but  see  Boon  v  Utica,  26  N.  Y.  Supp 
Rep.  616.  932:  and  Matter  of  Eager,  46  N.  Y.  100. 

3  Verdin  v.  City  of  St.  Louis  (Mo.  Sup.),          7  Dillon's  Munic.  Corp'ns.,  §  467  (4th  ed.). 
33  S.  W.  Rep.  480.   Burgess,  J..  dissenting.          8 Dillon's    Munic.   Corp'ns,    8  468    note 

4  Verdin  v.  St.  Louis  (Mo. ),  27  S.  W.  Rep.  (4th  ed .  1890). 

447.  9 15  Amer.  &  Eng.  Ency.  Law  1093-94. 

5  Silsby  Manfg.  Co.  u.  Allentown  (Pa.), 


160     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    |_§ 

monopoly  may  be  made  the  subject  of  a  proposal  and  contract  are  given 
below, 'as  well  as  those  which  are  to  the  contrary.8 

164.  Instances  where  Contracts  have  been  Made  for  Things  in  Which  there 
was  a  Monopoly. — Perhaps  the  law  will  be  better  understood  by  a  few  cases. 
Those  which  most  frequently  occur  are  in  contracts  for  patented  pavements 
and  sidewalks,  and  there  is  no  uniformity  in  the  decisions  of  the  different 
states.  There  are  several  cases  of  patented  machines,  one  a  pump,  in  which 
it  was  held  that  the  fact  that  the  pump  authorized  was  patented  did  not 
relieve  the  board  from  the  necessity  of  advertising  for  bids.3  Another  case 
decides  that  a  requirement  that  work  shall  be  let  to  the  lowest  bidder  does 
not  forbid  a  contract  for  a  garbage  crematory,  parts  of  which  are  patented, 
when  the  patents  have  been  offered  to  the  city  or  any  contractor  at  a  fixed 
price,  and  there  is  in  fact  free  competition  as  to  work  and  materials.*  In 
the  same  state  it  has  been  held  that  a  city  cannot  contract  for  a  patented 
pavement,  no  arrangement  having  been  made  with  the  patentee  binding  him 
to  sell  the  privilege  of  using  the  process  to  the  bidder  at  a  fixed  price.* 
Where  the  royalty  required  to  be  paid  on  a  patented  article  required  to  be 
used  in  the  performance  of  a  contract  for  public  works  was  fixed,  and  the 
proposal  inviting  bids  for  the  contract  definitely,  stated  that  the  royalty 
should  be  paid  by  the  accepted  contractor  in  a  particular  way,  and  several 
bids  were  actually  made  for  the  work,  and  the  contract  was  let  to  the  low- 
est bidder,  there  was  actual  competition  by  bids,  in  compliance  with  the 
law  requiring  the  letting  of  the  contract  to  the  lowest  bidder.8 

In  Louisiana  it  has  been  held  that  a  city  may  contract  with  the  highest 
bidder  in  order  to  remove  and  destroy,  under  certain  regulations,  the  offal 
that  is  annoying  to  health.7 

When  the  job  embraces  several  kinds  of  work,  some  of  which  are  patented, 
"while  others  are  not,  it  has  been  held  in  New  York  that  separate  proposals 
should  be  invited,  one  for  that  part  which  is  not  patented,  and  another  for  that 
which  is  patented  and  for  which  there  can  be  no  competition.8  Specifications 
in  the  alternative  have  been  allowed  in  a  case  where  the  lathing  to  be  used  was 
required  to  be  a  certain  "patent  lathing,"  or  "some  other  lathing  of  equal 
•quality  to  be  manufactured  from  sheet  iron  within  the  limits  of  the  city."  ' 

'Hobart  v.  Detroit,  17  Mich.  246;    Re  699;  Burgess  v.  Jefferson  City,  21  La.  Ann. 

)ugro,  50  N.  Y.  513;  N.  P.  Perrine  Co.  v.  143;  Dean  v.  Charlton,  23  Wis.  590;  Dean 

Quackenbush(CaL),  38Pac.  Rep.  533;  Ver-  v.  Borchsenius,  30   Wis.  236;  Barber  As- 

din  v.  St.  Louis  (Mo.),  27  S.  W.  Rep.  447;  phalt  Co.  v.  Hunt,  100  Mo.  22. 

Dean  v.  Charlton,  23  Wis.  590;  Kilvington  0.  3  Worthington  a.  Boston,  41  Fed.  Rep.  23 

City  of  Superior  (Wis.),  53  N.  W.  Rep.  487;  [1890]. 

Re  McCormack.  60  Barb.  128;  Worthington  4  Kilvington  v.   City  of  Superior  (Wis.), 

v.  Boston  (Mass.),  41  Fed.  Rep.  23  [1890];  53  N.  W.  Rep.  487. 

Harlem  Gas  Co.  v.  New  York,  33  N.  Y.  5Deau  v.  Charlton,  23  Wis.  590. 

•309.-  Nebraska  City  v.  Nebraska  Gas  Co.,  9  6  State  v.  Board  of  Com'rs  of  Shawnee 

Neb,  339;  Yarold  v.  Lawrence,  15  Kan.  County  (Kan.),  45  Pac  Rep.  616;  seealso 

126  People  tf.VanNort,  65  Barb.  (NY.)  331.  Detroit  v.  Robinson,  38  Mich.  108. 

2  State  v.  Elizabeth,  35  N.  J.  Law  351.  '  State  v.  Payssan  (La.),  17  So.  Rep.  481. 

Boon  v.  Utlca,  26  N.  Y.  Supp.  932;  Nich-  8  Re  Eager,  46  N.  Y.  100. 

olson  Pavement  Co.  v.  Painter,   35  Cal;  9  Mulrein  c.  Kalloch,  61  Cal.  522. 


§  Ib5.]  BIDS  AND  BIDDERS.  161 

Contracts  for  work  or  public  undertakings  for  which  franchises  or  exclu- 
sive rights  already  exist,  and  by  which  competition  is  prevented,  it  seems  are 
not  within  the  statute  requiring  all  contracts  for  work  and  materials  to 
be  advertised  and  let  to  the  lowest  bidder.  It  was  therefore  held  that  a 
contract  made  without  inviting  proposals  with  a  gas  company  who  had  the 
exclusive  right  to  supply  a  particular  part  of  a  city  with  gas  was  valid  and 
binding. 1  A  contract  with  the  only  electric-light  company  in  the  city  with- 
out advertising  was  held  valid.2 

When  professional  services,  as  those  of  a  surveyor,  are  required  and  he 
is  to  be  employed,  it  has  been  held  that  the  common  council  or  board  have 
the  power  to  select  with  references  to  securing  the  necessary  skill,  and  no 
advertisement  is  required.3  It  has  therefore  been  held  that  it  was  not 
necessary  to  advertise  and  to  give  to  the  lowest  bidder  a  contract  to  fur- 
nish fireworks,  for  the  reason  that  the  articles  were  of  a  peculiar  character, 
depending  for  their  value  upon  the  personal  skill  of  the  manufacturer.4 
This  is  an  interesting  case,  and  the  question  may  be  properly  asked  if  a 
contract  for  the  erection  of  a  lighthouse  would  come  under  the  same  rule, 
it  having  been  held  that  the  construction  of  such  a  structure  was  particu- 
lar work,  depending  upon  the  personal  skill  of  the  contractor,  and  such 
work  as  could  not  be  completed  by  his  executor  or  administrator.5  It  is 
thought  not. 

The  renting  of  chambers  for  the  recorder  of  the  city  of  New  York  has 
been  held  not  to  fall  within  a  provision  requiring  all  contracts  for  work  or 
supplies  to  be  let  to  the  lowest  bidder  ;6  nor  do  contracts  for  carriage  hire 
of  aldermen  and  councilmen  when  engaged  in  public  service.7 

165.  Conditions  and  Stipulations  as  to  the  Performance  and  Completion 
of  the  Work. 

I.  Work  and  Materials  to  be  to  Satisfaction  of  Engineer  or  Architect. 
Bidders  will  be  required  to  furnish   materials  and  to  complete  the 

entire  work  to  the  satisfaction  of  the  engineer  and  in  substantial  accord- 
ance with  the  specifications  hereunto  annexed  and  the  plan  therein 
referred  to.  No  extra  compensation,  beyond  the  amount  payable  for 
the  several  classes  of  work  before  enumerated,  which  shall  be  actually 
performed  at  the  prices  therefor  to  be  specified  by  the  lowest  bidder, 
shall  be  due  or  payable  for  the  entire  work. 

II.  Inspection  and  Acceptance  of  Work. 

Each  bidder  must  understand  that  should  his  proposal  be  accepted 
the  materials  delivered  and  the  work  performed  by  him,  at  any  and 
all  times  during  the  progress  of  the  work,  and  prior  to  final  accept- 
ance and  payment,  the  same  shall  be  subject  to  the  inspection  of  the 
engineer  or  architect,  or  his  authorized  agent,  with  the  full  right  to 

1  Harlem  Gas  Co.  v.  New  York,  33  N.  Y.          4Detwiller  v.  Mayor,  46  How.  Pr.  (N. 

309;  Nebraska  City  v.  Neb.  Gas  Co.,  9  Neb.  Y.)  2i8. 
339.  5  Wentworth  <o.  Cock,  10  A  &  E.  45. 

s  Hartford  v.  Hartford  Elec.  Lt.  Co.,  65          6  Davies  v.  New  York,  83  N.  Y.  207. 
Conn.  324.  7  Smath  v.  New  York,  21  How.  Pr.  1. 

3  People  v.  Flagg,  5  Abb.  Pr.  (N.  Y.)  232. 


162     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.      [§  165. 

accept  or  reject  any  part  thereof  that  in  the  opinion  of  the  engineer 
or  architect,  or  his  authorized  agent,  is  not  strictly  in  accordance  with 
the  drawings  and  specifications;  and  that  he  must,  at  his  own  expense,, 
within  a  reasonable  time,  to  be  specified  by  the  engineer  or  architect, 
remedy  any  defective  or  unsatisfactory  materials  or  work,  and  that  in 
the  event  of  his  failure  to  do  so  after  notice  the  engineer  or  architect 
will  have  the  full  right  to  have  the  same  done  and  to  charge  the  cost 
thereof  to  his  account.  Bach  bidder  must  understand  that,  should 
his  proposal  be  accepted,  inspection  of  or  payment  for,  any  portion  of 
the  work  embraced  therein  by  the  engineer  or  architect,  or  his  author- 
ized agent,  will  not  relieve  him  of  responsibility  to  remedy  any  defec- 
tive materials  or  workmanship,  at  his  expense,  at  any  time  before  final 
inspection  and  acceptance  of  and  final  payment  for  all  of  the  materials 
and  work  contemplated  by  and  embraced  in  his  proposal. 

2.  Prices  to  Include  Everything. 

The  prices  bid  are  to  cover  all  expenses  of  furnishing  materials 

[except ,which  will  be  furnished  by  the  company  or  city] 

and  to  cover  all  expenses  and  furnishing  of  tools,  labor,  and  utensils 
incidental  to  and  necessary  for  the  full  completion  of  the  work  in  con- 
formity with  the  contract  and  specifications. 
21.  Price  Bid  to  Include  Everything. 

Bidders  will  state  a  price  for  completing  the  work  specified  in  the 
bill  of  quantities  and  described  in  the  contract  and  specifications, 
which  price  is  to  include  and  cover  the  furnishing  of  all  the  material 
and  labor  and  the  performance  of  all  the  work  requisite  or  proper  for 
the  purpose,  and  the  completing  of  all  the  above-mentioned  work  and 
the  materials  in  the  manner  set  forth,  described,  and  shown  in  the- 
specifications  and  on  the  plans  furnished  for  the  work,  and  in  the  form 
of  contract  exhibited  and  furnished  by  the  engineer. 

3.  No  Deviation  from  Plans  and  Specifications. 

Bidders  are  informed  that  no  deviation  from  the  specifications  will 
be  allowed  unless  a  written  permission  shall  have  been  previously 
obtained  from  the  engineer  or  architect. 

4.  Bonds  to  Maintain  and  Keep  in  Repairs. 

The  successful  bidder  will  be  required  to  furnish  bonds  to  maintain 
and  keep  in  repair  the  whole  of  the  works  undertaken  by  him,  and  all 
other  works,  roads,  and  streets  interfered  with  or  rebuilt,  for  a  period 

of months  after  the  full  performance  and  completion  of  the 

contract. 

5.  Protection  of  Work  and  Materials. 

The  successful  bidder  will  be  responsible  for  the  proper  care  and 
protection  of  all  materials  delivered  and  work  performed  by  him  until 
the  completion  and  acceptance  of  and  final  payment  for  all  the  work 
embraced  in  his  proposal,  and  part  payments  from  time  to  time  on 
account  of  such  materials  and  work  will  not  in  any  way  relieve  him 
of  such  responsibilty. 

6.  Building  Regulations. 

The  successful  bidder  must  fully  comply  with  all  municipal  building 
ordinances  and  regulations,  and  obtain  all  required  licenses  and  per- 
mits, and  pay  all  charges  and  expenses  connected  therewith,  and  be 
responsible  for  all  damage  to  persons  or  property  which  may  occur  in 
connection  with  the  prosecution  of  the  work. 

7.  Skilled  Labor. 

The  successful  bidder  is  to  employ  omly  skilled  and  reliable  workmen 


165.]  BIDS  AND  BIDDERS.  163 

in  the  performance  of  the  work,  and  must  agree  that  the  engineer  or 
architect  shall  have  the  right  to  decide  upon  and  discontinue  the  serv- 
ices of  any  workman  employed  by  him  on  the  work  who  does  not 
possess  satisfactory  skill  and  qualifications  or  is  otherwise  objectionable* 

8.  ttidder  Must  Furnish  Bond  for  Payment  of  Labor  and  Materials. 
Each   bidder  must   distinctly   understand   that   if   his    proposal   is 

accepted,  he  will  be  required  to  execute  a  formal  bond  or  contract;  and 
the  part  and  final  payments,  as  the  vouchers  are  issued  on  account  of 
the  contract,  shall  be  subject  to  a  reserved  right  of  the  engineer  or 
architect  to  withhold  any  part  of  the  money  to  be  paid  under  the  con- 
tract in  the  event  of  the  failure  of  the  contractor  to  promptly  make 
payments  to  all  persons  supplying  him  with  labor  or  materials  in  the 
prosecution  and  completion  of  the  work  provided  for  in  the  specifica- 
tions, drawings,  and  proposal. 

9.  Commencement  and  Progress  of  Work. 

The  work  must  be  commenced  ten  days  after  the  execution  of  the 
contract  and  prosecuted  to  completion  without  interruption  or  delay; 
the  whole  work  is  to  be  completed  and  delivered  by  the , . . .  day  of 
189.. 

10.  Number  of  Days  Required  to  Complete  the  Work. 

Each  bidder  must  also  state  the  number  of  working-days  he  will 
require  to  complete  the  work,  which  number  of  days  will  be  counted  in 
the  comparison  of  bids  at  the  rate  of  twenty-five  dollars  ($25)  per  day. 

11.  Contractor's  Delay. 

All  additional  expense  to  the by  reason  of  extension  of  the 

contract  at  the  request  of  the  contractor  shall  be  deducted  from  pay- 
ments due  or  to  become  due  the  contractor  at  the  rate  of 

dollars  for  each  and  every  day. 

111.  Liquidated  Damages. 

The  damages  to  be  paid  for  each  day  that  the  contract  may  be  unful- 
filled after  the  time  specified  for  the  completion  thereof  shall  have- 
expired  are,  by  a  clause  in  the  contract,  fixed  and  liquidated  at „ 

dollars  per  day. 

112.  Liquidated  Damages. 

Each  bidder  must  understand  that  should  his  proposal  be  accepted 

the  sum  of dollars  as  liquidated  damages  will  be  fixed  for  each 

and  every  day's  delay  not  caused  by  the that  may  occur  beyond 

the  time  stipulated  in  his  proposal  for  the  supply  of  all  the  materials 
and  the  performance  and  completion  of  the  work. 
11*.   Liquidated  Damages. 

Liquidated   damages  of dollars  per  day  are  fixed   by  the 

terms  of  the  contract  for  each  and  every  day  that  the  contract  remains 
unfulfilled  after  the  date  of  completion  specified. 

12.  Bonus  for  Early  Completion. 

A  bonus  of dollars  per  day  will  be  paid  for  each  and  every  day 

that  the  work  is  completed  before  the  date  specified  for  completion. 

13.  Payments  on  Estimate. 

After  the  acceptance  of  a  proposal,  and  execution  and  approval  of  a 
formal  bond  and  contract,  monthly  payment  will  be  made  on  account, 
of  the  work  actually  done  and  in  place  in  the  structure;  and  such 
payments  will  be  based  upon  the  estimated  value  of  the  quantity  of  such: 
work,  computed  from  the  contract  unit  of  value,  less  10  per  cent,  to  be- 
retained  until  the  entire  and  satisfactory  completion,  final  inspection, 
and  acceptance  of  all  the  materials  and  work  embraced  in  the  contract^ 


164      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  166. 

at  which  time  final  payment  of  the  balance  due  will  be  made;  but  no 
payment  will  be  made  for  any  materials  delivered,  but  not  actually  put 
in  place. 

14.  Payments  to  Contractor  Only. 

Payments  will  be  made  only  to  principals.  Assignments  and  powers 
of  attorney  to  collect  moneys  will  not  be  recognized. 

15.  Payments  Contingent  on  Appropriations. 

Payments  will  be  made  upon  monthly  estimates,  but  contingent  upon 
such  appropriations  as  may  from  time  to  time  be  made  by  law,  and  ten 
(10)  per  cent,  will  be  reserved  from  each  payment  until  the  completion 
of  the  contract. 

16.  Officers  Not  Responsible. 

The  payments  to  the  contractor  shall  be  made  out  of  the  funds  under 
the  control  of  the  city,  county,  or  state  in  their  public  capacity;  and  no 
member  or  officer  of  such  city,  county,  or  state,  whether  or  not  a  party 
to  this  agreement,  is  to  be  personally  responsible  to  the  contractor. 

17.  Cannot  Assign  or  Sublet. 

The  original  contractor  will  be  held  to  the  performance  of  the  con- 
tract, and  transfers  of  contracts  or  of  interests  in  contracts  are  prohibited 
(by  law). 

166.  Conditions  and  Stipulations  as  to  Performance  and  Completion  of  the 
Work. — The  above  stipulations  are  common  to  construction  contracts  and 
fcelong  strictly  to  the  contract  itself,  and  are  treated  and  discussed  in  sec- 
tions specially  devoted  to  them  in  Part  III.  They  do  not  enter  into  the  pro- 
posal except  as  being  terms  of  the  agreement  which  the  bidder  must  execute. 
167.  Bond  or  Certified  Check  to  Insure  the  Execution  of  the  Contract,  and 
Security  for  its  Faithful  and  Complete  Performance. 

I.  Certified  Check. 

Each  bidder  must  submit  with  his  proposal  a  certified  check  for 

dollars ,  drawn  to  the  order  of ,  as  a  guaranty  that  he  will 

fully  and  faithfully  comply  with  the  terms  of  his  proposal  should  the 
same  be  accepted,  and  that  within  ten  days  after  the  form  is  sent  him 
he  will  execute  a  formal  bond  and  contract  in  accordance  therewith. 

II.  Bond  or  Certified  Check. 

Each  bid  or  proposal  must  be  signed  and  sealed  by  the  bidder  and 

witnessed,  and  be  accompanied  by  a  bond,  approved  by ,  in  a 

sum  equal  to  one  tenth  of  the  sum  bid,  as  liquidated  damages,  con- 
ditioned that  the  party  making  the  bid  shall,  within  ten  days  after  the 
acceptance  of  said  proposal,  execute  the  contract,  with  security  approved 
by  the  engineer  [commissioner]  for  its  faithful  performance.  In  case 
the  bid  be  accepted,  the  formal  bond  to  be  executed  and  approved  will 
be  attached  to  and  form  a  part  of  the  advertisement,  instructions,  and 
conditions,  specification,  accepted  proposal,  letter  of  acceptance,  and 
the  drawings,  all  properly  signed,  within  the  time  specified  in  this 
advertisement;  or,  in  place  of  the  bond  to  accompany  proposal,  the 
bidder  may  deposit  with  the  commissioner  a  sum  of  money  or  a  properly 

certified  check  of  the  same  amount  payable  to ,,  said  check  to 

be  returned  to  the  bidder  on  the  execution  and  delivery  of  the  final  con- 
tract and  the  bond  required  for  its  faithful  performance. 


§  167.]  BIDS  AND  BIDDERS.  165 

1*.  Bid  Must  be  Accompanied  by  Certified  Check. 

No  proposal  will  be  received  and  considered  unless  accompanied  by 
either  a  certified  check  upon  a  state  or  national  bank  drawn  to  the  order 

of . . . .  , ,  or  money,  to  the  amount  of per  centum  of  the  amount 

of  the  security  required  for  the  faithful  performance  of  the  contract. 

13.  No  bid  will  be  considered  which  has  not  responsible  sureties  upon 
its  accompanied  bonds,  or,  if  without  bond,  is  not  accompanied  by  a  cer- 
tified check,  as  aforesaid. 

14.  Bond  for  Execution  of  Contract  (U.  8.  Form). 

The  bond  attached  to  each  bid  must  be  signed  by  two  responsible 
sureties,  to  be  certified  to  as  good  and  sufficient  guarantors,  by  a  judge 
of  the  United  States  court,  a  United  States  district  attorney,  collector 
of  customs,  or  by  some  other  officer  under  the  United  States  government^ 
Each  guarantor  must  justify  in  a  sum  not  less  than  one  tenth  of  the 
whole  amount  of  the  proposal. 

2.  Forfeiture  of  Check. 

Should  the  successful  bidder  fail  or  refuse  to  execute  a  formal  bond; 
or  contract  within  ten  days  after  the  same  is  sent  to  him,  his  certified 
check  may  be  declared  forfeited,  the  letter  of  acceptance  of  his  proposal 
may  be  revoked,  and  all  obligations  in  connection  therewith  will  be 
released  and  annulled. 
21.  Forfeiture  of  Check. 

If  the  successful  bidder  shall  refuse  or  neglect,  within  five  days  after 
notice  that  the  contract  has  been  awarded  to  him,  and  that  the  adequacy 

and  sufficiency  of  the  security  offered  by  him  is  approved ,  to- 

execute  the  contract,  the  amount  of  the  aforesaid  deposit  made  by  him 

shall  be  forfeited  to  and  retained  by as  liquidated  damages  for 

such  neglect  or  refusal;  but  if  he  shall  execute  the  contract  within  the 
time  aforesaid,  the  amount  of  his  deposit  will  be  returned  to  him 
forthwith. 

3.  Delivery  of  Certified  Check. 

Such  check  or  money  is  not  to  be  inclosed  in  the  sealed  envelope 
containing  the  estimate,  but  it  is  to  be  delivered  to No  pro- 
posal will  be  received  until  such  check  or  money  has  been  deposited  and 
examined  and  found  to  be  correct. 

4.  Return  of  Certified  Checks. 

All  deposits  except  that  of  the  successful  bidder  will  be  returned  to> 
the  persons  making  the  same  within  three  days  after  the  contract  is 
awarded. 
41.  Return  of  Certified  Check. 

The  certified  check  of  the  successful  bidder  will  be  retained  until  the 
execution  of  a  formal  bond  or  contract,  and  the  approval  of  the  same 

by ,  and  the  certified  checks  of  the  unsuccessful  bidders  will  be 

returned  within  three  days  after  the  proposal  of  the  successful  bidder 
shall  have  been  accepted. 

5.  Names  of  Sureties. 

Bidders  are  required  to  name  the  sureties  or  surety  company  who  will 
sign  the  required  bond  in  case  the  contract  should  be  awarded  to  him 
or  them. 
51.   Consent  of  Sureties. 

Each  bid  or  estimate  shall  be  accompanied  by  the  consent  in  writing 

of  two  householders  of  the  state  of ,  with  their  respective  places 

of  business  or  residence,  to  the  effect  that : 


166     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  167. 

a.  If  the  contract  be  awarded  to  the  person  making  the  estimate,  they 
will  upon  its  being  so  awarded  become  bound  as  his  sureties  for  its 
faithful  performance. 

b.  If  he  shall  omit  or  refuse  to  execute  the  same,  they  will  pay  to  the 
corporation  any  difference   between  the  sum  to  which   he  would  be 
entitled  upon  its  completion  and  that  which  the  corporation  will  be 
obliged  to  pay  to  the  person  to  whom  the  contract  may  be  awarded  at 
any  subsequent  letting,  the  amount  to  be  calculated  upon  the  estimated 
amount  of  the  work  by  which  the  bids  are  tested. 

52.  Oath  of  Sureties. 

The  consent  above  mentioned  shall  be  accompanied  by  the  oath  or 
affirmation  in  writing  of  each  of  the  persons  signing  the  same  that  he 

is  a  householder  or   freeholder  in  the  state  of ,  and  is  the 

owner  of  property  in  value  equal  to  the  amount  of  the  security  required 
for  the  completion  of  the  contract  and  stated  in  the  proposals,  over  and 
above  all  his  debts  of  every  nature,  and  over  and  above  his  liabilities  as 
bail,  surety  or  otherwise;  that  he  has  offered  himself  as  a  surety  in  good 
faith  and  with  an  intention  to  execute  the  bond  required  by  the  law  if 
the  contract  shall  be  awarded  to  the  person  or  persons  for  whom  he 
consents  to  become  surety. 

6.  Acceptability  of  Sureties. 

The  adequacy  and  acceptability  of  all  sureties  and  the  amount  and 
character  of  the  surety  for  the  fulfillment  of  the  contract  will  be 
determined  by  the  commissioners  after  the  proposals  are  opened,  the 
award  made,  and  the  contract  signed. 

7.  Sureties  Must  be  Residents  of  State. 

If  a  bond  be  required  with  the  contract,  the  sureties  thereon  must  be 
residents  of  the  state  of and  satisfactory  to  the  commissioner. 

8.  Surety  Not  an  Officer  or  Partner. 

An  officer  of  a  corporation  will  not  be  accepted  as  surety  for  such 
corporation,  nor  will  a  firm  be  accepted  as  surety  for  a  member  of  the 
partnership. 

9.  Surety  Must  Not  be  in  Default. 

No  person  will  be  accepted  as  surety  who  as  a  contractor  has  failed  to 

satisfactorily  perform  any  contract  with  the ,  or  as  a  surety  has 

failed  to  abide  by  a  bond  for  the  performance  of  such  a  contract,  or  as  a 
guarantor  has  failed  to  abide  by  a  guaranty  accompanying  a  proposal. 
The  surety  must  be  signed  by  two  responsible  persons,  who  must  justify 
before  an  official,  authorized  to  administer  oaths. 

10.  Time  in  Which  to  Execute  the  Contract. 

The  person  or  persons  to  whom  the  contract  may  be  awarded  will  be 
required  to  appear  at  the  office  of  the  commissioner  of  public  works 
with  the  securities  offered  by  him  or  them  and  execute  the  contract 
within  ten  days  (not  including  Sunday)  from  the  date  of  notification  of 
such  award  and  that  the  contract  is  ready  for  signatures  and  sign  the 
contract  in  triplicate.  , 

11.  Ratio  of  Security  to  Proposal. 

The  security  required  for  faithful  performance  of  the  contract  and 
specifications  will  not  be  more  than  one  fourth  (^)  of  the  amount  of  the 
contract,  and  the  right  is  reserved  to  increase  the  amount  of  said  security 
after  proposals  are  opened  to  a  sum  not  exceeding  one  third  (£)  of  the 
total  consideration  of  the  contract. 


§  168.]  BIDS  AND  BIDDERS.  167 

168.  Bond  and  Certified  Check  to  Insure  the  Execution  of  the  Contract 
and   Surety  for  Faithful  Performance  and  Completion  of  the  Work. — The 

bidder  may  be  required  to  file,  before  the  bids  are  opened,  a  satisfactory 
bond  or  certified  check,  conditioned  that  he  will  enter  into  a  contract  with 
good  and  sufficient  surety  if  he  is  found  to  be  the  lowest  bidder.  Such  a 
requirement  is  reasonable,  and  the  lowest  bidder  cannot  insist  upon  the 
acceptance  of  his  bid  without  first  filing  such  bond.1  If  he  has  neglected 
to  do  so  before  the  proposals  have  been  opened,  it  may  be  doubted  if  he  can 
do  so  afterwards  if  the  board  refuse  him  the  privilege.  It  seems  that  public 
officers  may  in  their  discretion  excuse  the  failure  to  accompany  the  bid  with 
such  a  bond.  It  has  been  held  that  a  bond  furnished  on  the  same  day  that 
the  proposal  was  accepted  was  sufficient.2 

If,  however,  the  statute  or  charter  provides  that  whenever  any  improve- 
ment shall  be  declared  necessary  the  council  shall  authorize  the  department 
of  city  works  to  advertise  for  bids  under  seal,  which  bids  shall  be  publicly 
opened  and  announced,  with  the  name  of  the  bidder,  the  amount  proposed, 
"and  the  names  of  the  sureties,"  it  will  be  held  that  such  provision  requires 
security  to  be  given  with  every  bid,  such  security  to  be  a  guaranty  of  the 
bid,  as  well  as  of  the  performance  of  the  contract  if  awarded  to  the  bidder." 
If  a  charter  require  security,  but  there  is  no  provision  as  to  the  amount  of 
the  bond  or  as  to  its  form,  or  whether  it  was  to  be  furnished  with  the  bid 
or  after  its  acceptance,  the  regulation  of  such  matter  is  left  to  the  officers 
who  are  to  receive  the  bid.3 

Such  a  provision  is  necessary  to  insure  good  faith  in  bidders  and  to  make 
sure  that  the  proposals  are  not  withdrawn  before  the  contract  is  awarded.  A 
proposal  is  a  formal  offer  which  by  the  law  of  contracts  may  be  withdrawn 
or  revoked  at  any  time  before  it  has  been  accepted  ;  when  accepted  in  pre- 
cisely the  terms  of  the  proposal  it  becomes  a  binding  contract.  An  accept- 
ance which  varies  the  terms  of  the  offer  is  a  counter-offer  which  may  invali- 
date the  offer.4  * 

Therefore  a  deposit  by  one  bidding  for  a  city  contract,  made  on  con- 
dition that  it  be  forfeited  if  the  bidder  fail  to  qualify  after  award  of  the 
contract,  cannot  be  forfeited  for  his  failure  to  sign  a  contract  and  bond 
securing  its  performance  when  the  conditions  therein  are  more  burdensome 
than  were  the  specifications  contained  in  the  advertisement,5  or  where  the 
contract  is  not  based  on  legal  proceedings  of  the  municipal  authorities/ 

Where  it  is  an  express  condition  of  the  acceptance  of  a  bid  that  the 
bidder  shall  make  a  deposit,  which  is  to  be  forfeited  on  his  refusal  to  enter 

1  May  v.  Detroit,  2  Mich.  N.  P.  235.  and  see  also  Lloyd's  Law  of  Building  and 

2  Rabling  v.  Board  (Ind.),  40  N.  E.  Rep.       Buildings.  93. 

1079  ;    semble    Smith    v.   Philadelphia,   2  5  Cotter  v.  Casteel  (Tex,.  Civ.  App.),  37 

Brews.  (Pa.)  443.  S.  W.  Rep.  791. 

3  Selpho  v.  City  of  Brooklyn  (Sup.),  39  6  N.  P.  Perrine  Co.  v.  Pasadena  (Cal.),  47 
N.  Y.  Supp.  50.  Pac.  Rep.  777. 

4Tuttle  v.  Love.  7  Johns.  (N.  Y.)  470; 

*  See  Law  of  Contracts,  Chap.  IV.,  Sees.  92-97,  supra. 


168     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  169. 

into  the  contract,  the  bidder,  when  he  has  abandoned  such  a  contract  without 
just  cause,  is  not  entitled  to  be  relieved  against  the  forfeiture.1 

Public  officers  have  no  discretion  in  the  matter;  if  the  lowest  bidder  has 
refused  or  neglected  to  execute  the  contract,  the  check  that  he  has  deposited 
as  security  must  be  forfeited  and  retained  by  the  city  as  liquidated  damages 
and  paid  into  the  sinking-fund,  and  any  other  disposition  of  the  bid  or  the 
check  is  unlawful.2 

When  the  act  provides  that  the  bidder  whose  bid  is  accepted  and  who 
fails  to  furnish  proper  security  "  within  five  days  after  written  notice  "  that 
the  contract  has  been  awarded  him  shall  forfeit  the  deposit  accompanying  his 
bid,  the  forfeiture  will  not  occur  if  the  authorities  have  failed  to  give  him 
the  written  notice,  though  he  has  been  informed  of  the  acceptance  of  his  bid.* 

The  decisions  may  be  modified  or  conditioned  upon  whether  the  court 
regards  the  certified  check  as  a  penalty  or  as  liquidated  damages.  When 
the  notice  required  each  bid  to  be  accompanied  by  a  check  for  $500,  "  as 
a  guaranty  of  good  faith  that  the  bidder,  in  case  his  bid  is  accepted,  will 
enter  into  a  contract,"  and  the  plaintiff's  bid  was  accepted,  but  he  failed 
to  enter  into  a  contract  within  a  reasonable  time,  whereupon  defendant 
appropriated  his  check,  it  was  held  that  the  money  deposited  by  plaintiff 
was  not  liquidated  damages,  but  a  penalty,  and  defendant  was  entitled  to 
retain  only  so  much  as  would  cover  its  actual  damages.4 

The  fact  that  the  resolution  provides  that,  if  any  person  whose  bid  is 
accepted  shall  fail  to  enter  into  a  written  contract  and  give  the  required  bond 
within  ten  days,  the  certified  check  deposited  by  him  shall  be  forfeited,  etc., 
does  not  limit  the  city  council  to  ten  days  in  which  to  accept  a  written  con- 
tract and  bond,  and  require  a  forfeiture  of  the  contract  in  case  they  are  not 
furnished  within  that  time.5 

169.  Proposal  to  be  Accompanied  by  Consent  of  Sureties. — A  notice  to 
bidders  requiring  that  "the  proposal  should  specify  the  names  of  the  sure- 
ties offered,  with  the  written  consent  of  the  persons  so  named,"  has  been  held 
reasonable,  and  it  was  held  that  by  reason  of  neglect  to  furnish  the  written 
consent  prescribed,  the  lowest  bidder  was  not  entitled  to  have  the  contract 
awarded  him  ;  and  the  fact  that  he  was  present  at  the  opening  of  the  pro- 
posals accompanied  by  responsible  persons  for  the  purpose  of  giving  their 
written  consent  to  the  use  of  their  names  as  sureties  did  not  remedy  the 
omission  to  specify  their  names  in  the  sealed  proposals.  It  was  held  too  late 
to  perfect  the  bid.6  When  the  statute  requires  that  each  bid  "  shall  be  accom- 

1  Village,   of  Morgan   Park  v.  Grahan      34  Atl.  Rep.  774. 

(111.),  26  N.  E.  Rep.  1085  [.1891].  5  City  of    Springfield    0.  Weaver  (Mo. 

2  Kimball  v.  Hewitt,  2  N.  Y.  Supp.  697      Sup.),  37  S.  W.  Rep.  509. 

I*888]-  6  State  v.  Governor,  22  Wis.  110  [1867]; 

3  Erwing  «.  New  York,  16  N.  Y.  Supp.  State  v.  Bartley(Neb.).  70  N.  W.  Rep.  367; 
612  [1891] ;s^a:s0Mitchlerfl.  Easton(Pa.),  and  see  Roberts  v.  Brett.  6  C.    B.    N.  S. 
23  Atl.  Rep.  1109.  635 ;  Stafford  v.  Lowe,  16  Johns  (N.  Y-> 

4  Lindsey  v   Rockwall  County  (Tex.V  30  67  :  Cremer  ».  Higginsou,  1  Mason   C.  C. 
8.  W.  Rep.  380;  Willson  v.  Baltimore  (Md.),  R  323,  368. 


§  170.]  BIDS  AND  BIDDERS. 

panied  by  sufficient  guaranty  of  some  disinterested  person,"  the  act  is  not  com- 
plied with  by  merely  writing  the  name  of  the  person  offered  as  surety  as  such.1 

When  one  of  the  sureties  who  was  named  in  the  bid  refused  to  execute 
the  bond  as  surety,  it  was  held  sufficient  to  justify  a  refusal  to  execute  the 
contract  even  after  the  bid  had  been  accepted  and  the  details  of  the  contract 
agreed  upon,  and  even  though  the  lowest  bidder  did  offer  other  securities.3 
The  bid  must  conform  to  the  form  of  the  proposal  required.3  It  may  be  re 
quired  that  the  sureties  shall  be  residents  of  the  state,  and  the  award  of  the 
contract  may  be  refused  to  a  bidder  who  neglects  to  furnish  such  security.4 

The  public  officers  may  determine  the  responsibility  of  the  sureties 
offered,  and  if  they  are  sufficient;  and  it  seems  they  are  not  limited  in  their 
inquiry  to  their  reputed  or  actual  responsibility,  but  may  consider  their 
vocation,  business  habits,  character  of  their  investments  and  property,  and 
their  reputation  for  integrity  and  prudence.5  A  requirement  that  "  all 
proposals  must  be  accompanied  by  a  certificate  of  deposit  for  the  sum  named 
to  the  credit  of  the  auditor,"  is  satisfied  by  a  certificate'  of  deposit  to  the- 
credit  of  the  bidder  and  indorsed  as  "  Pay  K  S.  B.  Auditor,  etc.,  or  order." 
It  was  held  that  the  board  could  not  reject  the  bid,  that  being  the  lowest 
bidder,  and,  having  furnished  the  requisite  security,  he  was  clearly  entitled  to- 
the  contract  :  that  he  was  entitled  to  it  as  a  matter  of  right  and  of  law.  Such 
technicalities  cannot  be  prescribed.6  * 

THE  AWABD   AND    FINAL   EXECUTION   OF  THE   CONTRACT.      ACCEPTANCE   OP 

THE   PROPOSAL. 

170.  Information  to  be  Furnished  and  Conditions  to  be  Imposed  when 
Contract  is  Executed. 

1.  Bidder's  Residence  and  Address. 

The  place  of  residence  of  each  bidder,  with  post-office  address,  county,, 
and  state,  district,  or  territory,  must  be  given  after  his  signature,  which 
must  be  written  in  full. 

2.  Signatures  and  Seals. 

All  signatures  must  be  witnessed  and  have  affixed  to  them  seals  of 
wax  or  wafer. 

3.  Partnership  Bids. 

When  a  firm  bids,  the  individual  names  of  the  members  shall  be 
written  out,  and  shall  be  signed  in  full,  giving  the  Christian  names  ; 
but  the  signers  may,  if  they  choose,  describe  themselves  in  addition  as 
doing  business  under  a  given  name  and  style  as  a  firm. 

4.  Bids  by  Corporations. 

In  cases  where  a  corporation  submits  a  proposal,  the  proposal  must  be- 
signed  with  the  full  name  of  each  officer  of  the  corporation,  and  their 

1  State  v.  Board  of  Ed.,  42  Ohio  St.  374.  4Farman  v.  Comm'rs  of  Darke  Co.,  21 

2  Adams  v.  Ives,  63  N.  Y.  650  [1875].  Ohio  St.  311  [1871]. 

3  Wiggins  v   Philadelphia,  2    Brewster  5  Adams  «.  Ives,  63  N.  Y.  650  [1875]  ; 
(Pa.)  444  ;  Weed  v.  Beach,  56  How.   Pr.  Shaw  v.  Trenton,  49  N.  J.  Law  339  [1887]. 
(N.  Y.)  470;  accord  Wilson  v.  Baltimore  'Peoples.  Contracting  Board,  46  BarU 
(Md.),  34  All.  Rep.  774.  254  [1865]. 

*  As  to  Sureties  in  General  see  Sees.  18-22,  supra. 


170    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  171. 

addresses  given,  in  addition  to  the  corporation  signature,  with  official 
corporate  seal  thereto. 

5.  Bids  by  Agents. 

Any  one  signing  a  proposal  as  the  agent  of  another  or  of  others  mubf, 
file  with  it  legal  evidence  of  his  authority  to  do  so. 

6.  Officer's  Authority  to  Bid. 

If  "a  person  signs  for  a  corporation,  he  must  present  legal  evidence  that 
he  has  rightful  authority  to  such  signature,  that  the  signature  is  binding 
upon  the  corporation,  and  that  the  corporation  has  a  legal  existence. 
V.  Award  of  Contract. 

The  award  of  the  contract,  if  awarded,  will  be  made  to  the  bidder 
who  is  the  lowest  for  doing  the  whole  of  the  work,  and  whose  estimate  is 
regular  in  all  respects.  It  must  be  understood  that  an  acceptance  by 
the  board,  council,  or  state,  of  proposals  made,  shall  be  conditional  upon 
the  execution  of  the  formal  contract  (of  which  the  plans  and  specifica- 
tions are  a  part),  and  the  furnishing  of  the  required  bond  for  its  faithful 
and  complete  performance. 

8.  Right  to  Reject  Bids  Reserved. 

The  right  to  reject  [any  and]  all  bids  (plans,  and  estimates),  is  reserved 
if  the  Commissioners  of  Public  Works  shall  deem  it  for  the  interest  of 
the so  to  do. 

9.  Right  Reserved  to  Waive  Informalities. 

The  board  or  owner  reserves  the  rights  to  waive  any  informalities  in 
any  proposal  that  may  be  received,  and  to  reject  (any  or)  all  proposals 
submitted  in  response  to  the  advertisement,  and  to  disregard  the  bid  of 
any  failing  contractor  known  as  such  to  the  Engineer. 

10.  Invitation  to  Opening  of  Bids. 

Bidders  are  invited  to  be  present  at  the  opening  of  the  bids. 

[Signed] 


Dated 


Commissioners)  Council)  or  Board. 

171.  Acceptance  of  Proposal  and  Execution  of  Contract.  Right  to  Reject 
Bids. — When  the  statute  does  riot  require  that  the  contract  be  awarded  to 
the  lowest  bidder,  public  officers  may,  if  they  choose,  invite  competition,  and 
in  their  discretion  make  alterations  in  the  plans  and  specifications  adver- 
tised before  executing  the  contract  and  without  the  knowledge  of  competing 
bidders.1  They  must  not  abuse  the  discretionary  power  conferred,  and  their 
acts  must  be  free  from  fraud.8 

To  determine  what  is  the  lowest  aggregate  bid,  the  bids  must  be  consid- 
ered in  their  entirety,  and  not  by  taking  separate  items  from  different  bids.3 

Where  an  advertisement  for  bids  for  the  erection  of  public  school  build- 
ings states  that  the  board  reserves  the  right  to  reject  all  bids,  one  making 

'Kingsley  9.  Brooklyn.  5  Abb.  N.  Gas.  Rep.  1081;  Shefbaur  v.  Board  (N.  Y.),  31 

<N.  Y.)  1  ;  Brevoort  v.  Detroit,  24  Mich.  Atl.  Rep.  454  ;  Gilmore  ®.  Utica  (N.  Y. 

322;  Cummings  v.  Seymour,  79  Ind.  491  ;  App.),  29  N.  E.  Rep.  841';  Hubbard  «. 

Insley  u.  Shipard,  31  Fed.  Rep.  869.  Saudusky,  9  Ohio  Cir.  Ct.  Rep.  638. 

2  Elliot  v.  Minneapolis  (Minn.),  60  N.  W.  *  Hubbard  v.  Sandusky,  supra. 


§  172.]  BIDS  AND  BIDDERS.  171 

the  lowest  bid  has  no  right  of  action  against  the  board  where  the  bid  is 
rejected  and  the  contract  given  to  another,  though  it  was  the  rule  of  the 
board  that  contracts  should  be  let  to  the  lowest  bidder.1  It  has  been  held 
that  a  contract  may  be  awarded  to  one  at  any  price  within  the  legal  rate 
fixed  for  public  printing,  though  another  offers  to  do  the  work  for  sixty  per 
cent,  less.2  If  the  charter  or  a  statute  require  the  contract  to  be  awarded  to 
the  lowest  bidder  after  advertising  for  bids,  a  contract  not  so  made  and 
awarded  will  be  void.3  If  the  statute  provides  that  the  contract  "shall  be 
let  to  the  lowest  responsible  bidder,"  an  ordinance  or  advertisement  which 
states  that  "  the  commissioner  reserves  the  right  to  reject  any  proposal  at 
his  discretion,"  is  invalid.4  If  the  act  or  charter  says  the  contract  shall  be 
awarded  to  the  lowest  bidder  it  is  useless  to  "reserve  the  right  to  reject  any 
and  all  bids,"  though  it  has  been  frequently  held  that  "  all  the  bids  might 
be  rejected."1  The  body  awarding  the  contract  acting  in  good  faith  may 
refuse  to  award  to  any  one  if  they  deem  it  for  the  best  interests  of  the  public 
to  do  so.  They  may  reject  all  the  bids  and  readvertise  for  new  proposals.8 
It  seems  that  the  awarding  of  the  contract  may  be  indefinitely  postponed,7 
or  the  work  may  be  abandoned  altogether  or  the  plans  and  specifications 
changed.8 

It  seems  that  the  contract  cannot  be  awarded  to  another  who  makes  a 
better  offer  after  the  bids  have  been  received  and  opened.9 

172.  Power  to  Determine  Responsible  Bidder  is  Discretionary. — If  the 
statute  provide  that  the  contract  be  awarded  to  "the  lowest  responsible 
party"  or  to  "the  lowest  responsible  party  furnishing  good  and  sufficient 
security,"  the  courts  have  usually  held  it  to  confer  discretionary  powers  upon 
the  public  officers  to  determine  whether  or  no  the  bidder  was  responsible 
iind  if  his  surety  was  good  and  sufficient. 10  When  such  discretionary  powers 
belong  to  a  board  of  public  officers  the  right  "to  reject  any  and  all  bids" 

Anderson  v.  Board  of  Public  Schools  'People  v.  Aldridge,  31  N.Y.  Supp.  920. 

(Mo.  Sup  ),  27  S.  W.  Rep.  610.  8Keogh  v.  Wilmington,  4  Del  Ch  491. 

4  Board  of  Com'rs  of  Henry  County  v.  9Kcrr  v.  Philadelphia,  8  Phila.  (Pa.) 

Gillies  (Ind.  Sup.),  38  N.  E  liep.  40.  292. 

3  Littler  v.  Jayne,   124  111.  123;  State  v.  10  Douglass   v.  Commonwealth,  108  Pa. 
Licking  Co  .  26  Ohio  St.  531.  St.  559;    Kelly  v.    Chicago,   62    111.    279 

4  Lake  Shore  &  M.  S.  R  «.  City  of  Chi-  [1871]  ;  Findlev  «.   Pittsburgh,  82  Pa.  St. 
cage  (111.),  88  H.  E.  Rep   602.  351;  Interstate,    etc.,  Co.  v.  Phila.  (Pa.), 

6  Walsh  v.  Mayor,  113  N.  Y.  142  [1889] ;  30  All.  Rep.  383  ;  Comm.  v.  Mitchell.  82 

People  v.  Croton  Aqueduct,  49  Barb.  259  ;  Pa.  St.  343  ;  Hoole  v.   Kiukead,  16  Nev. 

Bell  v.  City  of  Rochester,  30  N.  Y.  Supp.  217;   People  v.  Dorsheimer,  55  How.  Pr. 

355;  People  v.  Aldridge,  31  N    Y.  Supp.  (N.  Y.)  118;  Hubbard  v.  Saudusky,  9  Ohio 

920 ;  Connolly  v.   Board   (N.  J.),  30  Atl.  Cir.    Ct.    Rep.    638;    People  v.    Mooney 

Rep.  548;  Booth  v.  City  of  Bayonne  (N.  (Sup.),  38    N.  Y.  Sup.    495;  State  v.  Bd. 

J.),   28  Atl.  Rep.  381,  15  Amer.  &  Eng.  of  Ed.  (Ohio),  20  Bull.   156;  semble,  Van 

Eucy.  Law  1096  ;  Gunning  G.  Co.  v.  New  Reipen  v.  Jersey  City  (N.  J.),  33  Atl.  Rep. 

Orleans  (La.),  13  So.  Rep.  182  ;  People  v.  740;  and  see  State  v.  Marion  Co.,  39  Ohio 

Willis  (Sup.),  39  N.  Y.  Supp.  987;  State  ».  St.  188  ;  People  v.  Gleason,  4  N.  Y.  Supp. 

Directors.    5  Ohio  St.  234  ;  Kelly  v.  Chi-  383;  Weed  v.  Beach, -56  How.  Pr.  -N.  Y.) 

cugo,  62  111.  279.  470;  May  v.  Detroit,  12  Am.  L.  Reg.  (N. 

6  Walsh    v.     Mayor,     113    N.    Y.    142  S.)   149;   McBrian    v.    Grand    Rapids,  56 

[1889]  ;  Connolly  «.  Board  (N,  J.),  39  Atl.  Mich.  95. 
Rep.  548. 


172     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  173. 

seems  to  be  properly  reserved,  the  exercise  of  which  right  is  subject  to  the 
close  scrutiny  of  the  court. ' 

Sometimes  the  ordinance  or  act  itself  authorizes  the  engineer  to  reject 
any  and  all  bids  if  deemed  too  high  or  the  parties  bidding  are  deemed  irre- 
sponsible.3 Under  such  a  clause  the  act  of  the  engineer  in  rejecting  the 
lowest  bid  can  be  impeached  only  on  the  ground  of  bad  faith. 

If,  as  is  sometimes  the  case,  the  statutes  provide  that  "  every  such  contract 
shall  be  deemed  confirmed  in  and  to  such  lowest  bidder  at  the  time  of  the 
opening  of  the  bids,"  3  then  there  is  no  discretion;  the  contract  goes  to  the 
lowest  bidder. 

173.  Discretion  Must  be  Exercised  in  Good  Faith. — The  body  or  board  or 
council  accepting  the  bids  must  determine  whether  the  lowest  bidder  is  re- 
sponsible and  shows  the  ability  and  offers  the  security  prescribed;  and  if  the 
bid  is  not  rejected  because  of  a  bonafide  determination  of  the  lack  of  such 
qualifications,  it  cannot  be  rejected  for  other  extraneous  causes.4  The  word 
"  responsible  "  has  been  held  not  to  have  reference  to  pecuniary  ability  alone, 
but  to  have  reference  to  the  skill,  ability,  and  integrity  of  the  bidder,  and 
that  it  is  proper  to  consider  which  bidder  would  be  most  likely  to  do  faithful, 
conscientious  work.5  The  word  "  responsible"  has  been  held  to  mean  the 
ability  to  perform  all  the  conditions  of  the  contract;  and  the  commissioner 
of  public  works  may  reject  a  bid,  notwithstanding  it  is  the  lowest  made, 
and  the  bidder  is  able  to  give  the  required  bond,  if,  in  the  judgment  of  such 
official,  after  due  investigation,  the  materials  customarily  used  and  the 
workmanship  exhibited  by  the  bidder  in  the  performance  of  the  kind  of 
work  required  are  poor  and  unsatisfactory.  6 

The  discretion  must  be  exercised  in  good  faith  and  without  fraud  or 
collusion;7  and  such  a  power  to  dispense  with  certain  requirements  con- 
ferred upon  a  board  or  council  by  act  of  legislature  being  discretionary,  it 
cannot  be  delegated.8  The  board  cannot  exercise  an  arbitrary  discretion  in 
awarding  the  contract,  but  must  base  its  discretion  on  facts  reasonably  tend- 
ing to  support  its  determination.9 

It  seems  that  evidence  is  admissible  to  impeach  the  contract  and  show 

1  People  v.  Willis  (Sup.),  39  N.  Y.  Supp.  7  Reuting  v.  Tittisville  (Pa.),  34  All.  Rep. 
987;  Peeplesu.  Byrd  (Ga.),  25  S.  E.  Rep.  916;  Ross?).  Bd.  of  Ed.,  42  Ohio  St.  374; 
677;   State  0.    New  Orleans   (La.)   19   So.  Hubbard   v.    Sandusky,  9   Ohio  Cir.   Ct. 
Rep.  690;  Gunning  G.  Co.  v.  New  Orleans  Rep.  638;  Van  Reipenfl.  Jersey  City  (N.  J.), 
(La.),  13  So.  Rep.  182.  33  All.  Rep.  740;  Gunning  G.  Co.  v.  New 

2  Johnson  v.  Duer  (Mo.),  21  S.  W.  Rep.  Orleans  (Ln.),  13  So.  Rep.  182;  People  v. 
800  ;  State  v.  New  Orleans,  supra.  Town  of  Campbell,  note  8;  State  v.  Belts,  4 

3  The  People  v.  The  Crotoii  Aqueduct,  C.  C.  (Ohio)  86. 

49  Barb.  259  [1867].  8  Re  Emigrant,  Ind.   Sav.   Bank,   75  N. 

4  Shaw  ^.Trenton, 49  N.J.  Law  339  [1887].       Y.  383;  but  see  Peoples.  Town  of  Camp- 
5Comm.    v.    Mitchell,    82   Pa     St.    343;       bell  (Sup.),  36  N.  Y.  Supp.  1062.  where  en- 

Hoole  v.  Kinkead,  16  Nev.   217;  Reuting  gineer  was   authorized  to  receive  proposals 

v.  Titusville  (Pa.  Sup.),  31  Atl.  Rep.  916  and  award  contract;  andseeRo&rdv.  Kemp 

6  People   v.   Kent  (111.  Sup.),  43   N.   E.  (Ind.  App.),  43  N.  E.  Rep.  314. 

Rep.  760;  Peeples  v.  Byrd  (Ga.),  25  S.  E.  9  McGovern  v.   Board  (N.  J.   Sup.),  31 

Rep.   677;    State  v.  St.   Bernard,  10  Ohio  Atl.  Rep.  613;  semble,  In  re  McCain  (S.  D.), 

Cir.  Ct.  Rep.  74.  68  N.  W.  Rep.  163. 


§  175.]  BIDS  AND  BIDDERS.  173 

that  the  bid  accepted  was  not  in  fact  the  lowest  according  to  the  data  pro- 
posed as  tests,  without  alleging  a  fraudulent  collusion  between  the  bidder 
and  the  officers  awarding  the  contract.1 

174.  Bids  Rejected  but  Reconsidered  Without  a  New  Advertisement.— A 
common  council  which  has  rejected  all  bids  received  in  reply  to  an  adver- 
tisement for  proposals  may  at  a  subsequent  meeting,  without  readvertising 
for  new  proposals,  reconsider  the  vote  of  rejection  and  award  the  contract  to 
one  of  the  original  bidders.     It  has  been  so  held.2     It  may  be  doubted  if 
the  bidder  could  be  held  to  his  offer,  it  having  been  once  rejected  and  not 
renewed  again.      Therefore  when  the  instructions  to  bidders  required  a 
guaranty  that  the  bidder  would  not  withdraw  his  proposal  within  sixty  days, 
and  that  if  the  same  were  accepted  he  would  enter  into  a  contract  within 
ten  days  after  the  day  on  which  he  should  be  notified  of  such  acceptance,  it 
was  held   that  after  that  time,  as  against  the  bidder,  the  bid  could  not  be 
accepted;  and  it  was  further  held,  that  though  personal  notice  of  the  accept- 
ance was  intended,  and  that  though  notice  was  deposited  in  the  mail  a  few 
days  before  the  expiration  of  the  sixty  days,  but  which  did  not  reach  the 
bidder  until  after  the  expiration  of  that  period,  was  insufficient  to  render 
him  or  his  guarantors  liable  for  a  failure  to  enter  into  a  contract.3  * 

A  second  advertisement  for  bidders  has  been  held  unnecessary  in  case  of 
nonperformance  by  the  original  contractor,  the  liability  of  the  contractor 
and  his  sureties  having  been  deemed  adequate  indemnity  against  additional 
expense  in  completing  the  work.  If  the  expense  has  not  been  increased  by 
fraud  and  irregularity,  an  assessment  levied  under  the  act  cannot  be  vacated 
or  reduced.4  The  fact  that  the  work  was  completed  at  an  expense  consid- 
erably exceeding  the  contract  price  does  not,  it  seems,  require  that  it  should 
have  been  readvertised  and  relet. 5 

175.  Not  Always  Necessary  to  Readvertise. — When  the  lowest  bidder 
had  failed  or  refused  to  enter  into  the  contract  and  to  give  the  guaranty  re- 
quired, it  was  held  that  the  contract  might  be  awarded  to  the  next  lowest 
bidder  without  readvertising  for  bids;8  but  it  seems  that  the  next  lowest 
bidder  cannot  compel  the  award  of  the  contract  to  him.7 

There  are  cases  to  the  contrary  which  hold  that  if  the  lowest  bidder  with- 
draw his  bid  it  is  necessary  to  advertise  again,  and  not  to  award  the  contract 
to  the  next  lowest  bidder.8  The  charter  may  require  that  notice  be  given  at 
a  reletting  of  a  contract  the  same  as  at  the  first  letting,  and  the  contract  re- 
awarded  to  the  lowest  bidder,  in  which  case  it  must  be  strictly  followed.9 

1  Brady  v.  Mayor,  20  N.  Y.  312  [1859].  6  Gibson  v.  Owens  (Mo.  Sup.),  21  S.  W. 

2  Ross  v.  Stackhouse,  114 Ind.  200  [1887].       Rep.  1107. 

3Haldane  v.  United  States  (C.  C.  A.),  69  7  State  v.  Shelby  Co.,  36  Ohio  St.  326; 

Fed    Rep  819.  see  also  Mackenzie  v.  Baraga  Tp.,  39  Mich. 

*ln  re  Leeds,  53  N.  Y.  400  [1873],  Jus-  554. 

tice  Allen  dissenting.  8Twiss    0.    Port    Huron,   63  Mich.  528 

5  In  re  Leeds,   supra;  Brass  Foundry  [1886];  s.  c.,  30  N.  W.  Rep.  177. 

Works  «.  Parker  Co.,  115  Ind.  234,  con-  9  Dillon's    Mimic.    Corp'ns  [4th  ed.],  § 

ttruction  of  a  public  building.  466,  note,  and  cases  cited. 

*  See  Sec.  95,  supra. 


174     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  175. 

Some  cases  hold  that  after  bids  have  been  received  material  alterations  can- 
not be  made  in  the  contract  awarded  without  a  new  advertisement.1  * 

If  the  contractors  abandon  the  work,  the  act  of  their  surety  in  finishing 
the  building  for  the  city  as  their  agent  has  been  held  simply  the  completion 
of  the  original  contract,  and  hence  that  the  letting  of  a  new  contract  to  a 
new  "  lowest  bidder  "  is  unnecessary.2 

If  the  contractor  has  abandoned  the  work,  a  contract  by  the  county  with 
the  subcontractor  to  pay  him  for  work  done  by  him  or  to  be  done  by  him 
was  held  not  void  if  the  work  had  progressed  so  that  in  the  judgment  of  the 
commissioners  it  might  be  completed  substantially  under  the  original  con- 
tract, and  by  keeping  in  operation  the  agencies  already  in  motion.3  Work  so 
abandoned  may,  it  seems,  be  completed  without  readvertising  or  competition 
at  fair  prices,  even  though  the  expense  considerably  exceeds  the  contract 
price.4  If  the  lowest  bidder  be  allowed  to  withdraw  his  bid  on  the  ground 
of  a  mistake,  it  seems  it  is  improper  to  award  the  contract  to  the  next  lowest 
bidder.  The  work  should  be  advertised  again,  and  other  bidders  be  allowed 
to  revise  their  bids.5 

These  are  special  cases,  and  are  so  fortified  with  conditions  that  a  gen- 
eral statement  of  the  law  can  scarcely  be  made.  Indeed,  it  can  hardly  be 
desired  that  such  general  law  should  exist,  for  it  might  be  employed  as  a 
means  of  avoiding  the  statute  by  getting  a  mock  contractor  to  undertake 
the  work  and  then  abandoji  it  to  the  merciless  grasp  of  conspirators  and 
boodlers. 

When  proposals  have  been  solicited  for  public  work  and  they  have  been 
received,  giving  separate  bids  for  the  material  and  different  kinds  of  work 
required  in  the  construction,  one  of  which  has  been  accepted  with  the  un- 
derstanding that  when  the  structure  is  located  the  amount  to  be  paid  will 
be  determined  by  its  length  and  size  upon  the  basis  fixed  in  the  bid,  it  is 
not  necessary  to  advertise  for  new  proposals  when  the  structure  is  located, 
even  though  it  is  considerably  shorter  than  was  the  one  bid  upon.8  And 
when  the  advertisement  and  proposal  was  for  paving  a  specified  distance 
and  the  contract  entered  into  was  to  pave  only  a  part  of  that  distance,  "or 
further  if  ordered,"  it  was  held  that  it  was  not  necessary  to  readvertise  for 
proposals  when  the  balance  of  the  work  was  ordered  to  be' done;  that  it  was 
covered  by  the  original  contract.7  If  the  council  resolve  to  readvertise  for 
bids  for  a  street  improvement  because  the  lowest  bid  is  in  excess  cf  the 
estimate  by  the  engineer,  their  act  must  be  approved  by  the  mayor,  or 
passed  over  his  veto,  as  provided  in  the  city  charter.8  If  no  notice  to  the 

1  Dickinson  «.  Pougbkeepsie,  14  N.  Y.          5  Twiss  v.  Port  Huron,  63  Mich.  528. 
Super.  Ct.  1.  6  Insley  v.   Shepard,   31   Fed.    Rep.  869 

2  McChesney  v.  City  of  Syracuse  (Sup.),  [1887];  Brevoort  ».  Detroit,  24  Mich.  322. 
22  N.  Y.  Supp.  507.  7  Brevoort  v.  Detroit,  supra. 

3  Bass  F.  &F.  Works  0.  Parker  County          8  Booth  v.  City  of  Bayonne  (N.  J.),  28 
(Ind.),  115  Ind.  254  [18881.  Atl.  Rep.  381. 

4  Matter  of  Leeds,  53  N.  Y.  400. 

*  See  also  Sec.  155-160,  supra. 


§  176.]  BIDS  AND  BIDDERS.  175 

mayor  be  required  by  law,  a  contract  for  a  public  improvement  may  be 
awarded  legally,  without  any  notification  by  the  commissioners  to  the  mayor 
of  the  meeting  when  the  award  was  made.1 

176.  Whether  Lowest  Bidder  can  Compel  an  Award  to  Himself. — 
Whether  or  not  a  board  may  be  compelled  to  award  the  contract  to  the 
lowest  bidder  is  not  fully  settled.  There  are  numerous  decisions  partly  to 
the  effect  that  a  court  will  not  compel  the  city  or  its  board  to  award  the 
contract  to  the  lowest  bidder;*  that  when  a  board  is  invested  with  a  discretion, 
the  court  will  not  seek  to  control  it  in  the  absence  of  fraud  or  bad  faith.* 
The  fact  that  the  lowest  bid  is  considerable  [$1500]  greater  than  the  esti- 
mate cost  does  not  warrant  the  inference  that  its' acceptance  was  fraudulent.4  * 
It  has  been  held  that  when  an  act  directs  municipal  officers  to  award  a 
contract  "to  the  lowest  responsible  bidder  "  it  vests  discretionary  powers  in 
such  officers,  the  word  ' (  responsible  "  applying  not  only  to  pecuniary  ability, 
but  also  to  judgment  and  skill  of  the  contractor. 5  f  Such  officers  are  free 
from  control  so  long  as  they  act  in  good  faith,  though  they  do  act  erro- 
neously and  indiscreetly.6  The  court  will  not  interfere  with  the  commis- 
sioners if  they  have  exercised  reasonable  care  to  advise  themselves  whether 
the  lowest  bidder  could  be  depended  on  to  do  the  work  bid  for  with  ability, 
promptitude,  and  fidelity,  and  in  good  faith  concluded  that  he  could  not, 
though  the  court  be  satisfied  that  such  conclusion  was  erroneous,7  or  that 
they  have  been  indiscreet.8  A  board  of  public  works  is  better  qualified  to- 
determine  what  bid  for  a  public  work  should  be  accepted  than  a  court  of 
chancery  can  be,  and  the  court  will  interfere  only  where  the  chancellor  can 
see  that  the  board  has  either  acted  in  violation  of  law  or  in  such  a  manner 
that  its  contract  virtually  amounts  to  a  fraud.9 

The  lowest  bidder  is  usually  held  to  acquire  no  legal  right  to  compel  by 
mandamus  that  the  contract  shall  be  awarded  to  him  when  discretionary 
power  has  been  conferred  upon  the  commissioners.10  The  fact  that  a  bidder 

1  Terrell  «.  Strong  (Sup.),  35  N.  Y,  Supp.       Dist.    (111.   Sup.),   45    N.  E.    Rep.    213; 
1000;  see  also  Barber  Asph.  P.  Co  v.  Ull-       Wright  v.  Com'rs,  6  Mont.  29. 

man  (Mo.  Sup.),  38  S.  W.  Rep.  458.  4  Booth  v.  City  of  Bayonne  (N.  J.  Sup.), 

2  Dillon's   Munic.    Corp'ns,    §   32,    note,       28  Atl.  Rep.  381. 

and  many  cases  cited.  5  Interstate,  etc.,  Co.   «.   City  of  Phila. 

3  Kelly  v.  Chicago,   62  111.   279  [1871];       (Pa.),  30  Atl.  Rep.  383;  Douglass  v.  Com- 
Douglass  v.  Commonwealth,   108  Pa.  St.       monwea'th,  108  Pa.  St.  559. 

559;  Hewlett  D.  Directors,  5  Ohio  St.  235;  6  Douglass  v.  Commonwealth,  108  Pa:  St. 

[1856];    People  v.  Croton  Aq.  Board,  49  559. 

Barb.  259;  Findley  v.  Pittsburgh,  82  Pa.  1  State  ®.  Village  of  St.  Bernard,  10  Ohio 

St.  :  51;  see  also  Grants.  Common  Council  Cir.  Ct.  R.  74. 

(Mich.),   52  N.   W.   Rep.    997;  Comm.  v.  8  Findley  v.  City  of  Pittsburgh,  82  Pa. 

Mitchell,  82  Pa.  St.  343;  Hoole  v.  Kinkead,  St.  351. 

16  Nev.  217;  Weed  v.  Beach,  56  How.  Pr.  9  Johnson  v.  Sanitary  Dist.  of  Chicago, 

(N.  Y.)  470;  People  v.  Contracting  Bd.,  27  58  111.  App.  306. 

N.  Y.  378,  33  N  Y.  382;  State  v.  Bd.  of  10 15  Amer.   &  Eng.   Ency.    Law   1097; 

Ed.,  42  Ohio  St.  374:  People?'.  Kent  (111.),  State   v.   Kendall,   15  Neb.   262;    State  0. 

43  N.  E.  Rep.  760:  In  re  McCain  (S.  D.),  Dixon   Co.    (Neb.),   37  N.  W.  Rep.  936; 

68  N.  W.  Rep.  163;  Johnson  v.  Sanitary  State  v.  McGrath,  91  Mo.  386;  and  see  De« 

*  See  Chap.  I.,  Sees.  50-56,  supra. 
f  &e  Sec.  173,  supra. 


176        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  177. 

was  the  lowest,  and  has  been  reported  to  the  common  council  as  such,  does 
not  establish  a  binding  contract  with  a  city  until  approved  and  ratified  by 
the  common  council,  as  required  by  law. l  * 

When  a  charter  provides  that  the  contract  shall  be  "let  to  the  lowest 
reliable  and  responsible  bidder/'  it  requires  public  officers  to  exercise 
discretion  and  determination,  and  it  has  been  frequently  held  that  courts 
would  not  issue  an  injunction  to  prevent  an  award  of  a  contract  to  one  who 
was  not  the  lowest  bidder.2  The  facts  must  be  made  to  appear  sufficiently 
to  show  that  they  bring  the  case  within  the  officers'  discretion,  and  that  it 
was  exercised  in  obedience  to  law. 3 

177.  Public  Officers  may  be  Enjoined  from  Illegally  Awarding  Contract. — 
It  is  well  settled  that  any  taxpayer  can,  or  if  a  taxpayer  be  the  lowest  bidder 
he  can  himself,  bring  suit  in  equity  to  enjoin  the  execution  of  a  contract 
illegally  awarded.4  The  lowest  bidder  can  do  this  though  he  is  prompted 
by  other  considerations  than  his  liability  to  excessive  taxation.6  So  where  a 
council  merely  finds  that  the  one  to  whom  the  contract  was  awarded  was 
"the  lowest  and  best  bidder"  without  finding  any  facts  which  rendered 
another,  who  was  apparently  the  lowest  bidder,  not  the  lowest  bidder  in 
fact,  the  performance  of  the  contract  will  be  enjoined.6 

The  discretion  vested  in  commissioners  will  be  controlled  by  the  courts 
only  when  necessary  to  prevent  fraud,  injustice,  or  the  violation  of  a  trust; 7 
.and  the  mere  fact  that  the  commissioners  awarded  the  contract  to  one  not 
the  lowest  bidder  is  insufficient  to  establish  the  charge  that  they  acted 
fraudulently  or  illegally.8 

If  public  officers  are  about  to  award  a  contract  without  advertising  for 
bids  as  required  by  law,  or  if  a  contract  has  been  let  in  violation  of 
the  law,  a  court  of  equity  will  prevent  the  execution  or  performance  of 
the  contract  at  the  instance  of  any  taxpayer.  The  allegation  and  proof 
of  fraud  will  cause  an  injunction  to  issue  to  restrain  the  awarding  of  the 

troit  F.  P.  Co.  v.  Auditors,  47  Mich.  135;  51  N.  W.  Rep.  997. 

State  v.  Supervisors  York  Co.,  17  Neb.  643;  3  Commonwealth  v.  City  of  Philadelphia 

People  v.  Bd.  of  Ed.,  5  N.  Y.  Supp.  392;  (Pa.  Sup.),  35  Atl.  Rep.  195. 

Mayo  v.  Hampden  Co.  Comm'rs,  141  Mass.  4  Board  v.  Gillies  (Ind.),  88  N.  E.  Rep. 

74;    People  v.   Campbell,  72  N.    Y.    496;  40;  and  see  Christian  v.  Dunn  (Com   PL), 

Deckman  c.  Oak  Harbor,  10  Ohio  Cir.   Ct.  8  Kulp.  320  :  Wood  v.  Pleasant  Rid^e,  12 

Rep.   409;    State  <o.    Scott,    17   Neb.   686;  Ohio    Cir.    Ct.     Rep.     177;    Comm'rs    v. 

People  «.    Croton    Aq.    Board,   26   Barb.  Templeton.  51  Ind.  266. 

<N.  Y.)  240;  Rabling  «.  Board  of  Comm'rs  5  Times  Pub.  Co.  v.  Everett  (Wash.),  37 

<Iud.  Sup.),  40  N.  E.  Rep  1079;  cases  col-  Pac.  Rep.  695  :  semble,  People  v.  Contract- 

lected  14  Amer    &  Eug.  Ency.  Law  210,  ing  Board,  33  N.  Y.  382 ;  and  see  Peeples 

note  6;  East  River  Gas  Co.  v.  Donnelly,  93  V.  Byrd  (Ga.),  25  S.  E.  Rep.  677. 

N.  Y.  557;  Times  Pub.  Co.  «.  City  of  Ev-  6  Times  Pub.  Co.  v.  Everett  (Wash.),  37 

erett  (Wash.),  37  Pac.  Rep.  695.  Pac.  Rep.  695. 

1  Smith  v.  Mayor,  10  N.  Y  504;  and  see  »  Terrell  v  Strong  (Sup.),  35  N.  Y.  Supp. 
Walsh  «.  New  York,  113  N.  Y.  142;  andsee  1000  ;  Johnson  v.  Sanitary  Dist.  (111.  Sup.), 
also  United  States  v.  Lamont,  15  Sup.  Ct.  45  N.  E.  Rep.  213. 

97.  8  Terrell  v.  Strong  (Sup.),  35  N.  Y.  Supp. 

2  15  Amer.  &  Eng.   Ency.  Law  1096 ;      1000. 
and  see  Grant  v.  Common  Council  (Mich.), 

*  See  Sec.  183,  infra. 


§  178.]  BIDS  AND  BIDDERS.  177 

contract ; l  and  injunction  seems  to  be  the  proper  remedy,2  though  not  a 
necessary  remedy,  it  seems.  If  a  taxpayer  has  before  the  commencement  of 
the  work  notified  the  contractors  that  he  would  contest  the  legality  of  the 
proceedings  under  which  they  were  acting,  he  is  in  a  position,  after  they 
l.iive  completed  the  work,  to  ask  that  the  placing  of  a  lien  on  his  property 
f  )r  the  cost  of  construction  be  enjoined.3 

It  has  been  held  that  when  a  contract  was  awarded  to  a  bidder  who  was 
only  $200  higher  than  the  lowest  bid,  only  $30  of  which  was  to  be  paid 
by  the  city,  and  the  mistake  was  one  of  judgment  merely  and  not  inten- 
tional, it  did  not  warrant  the  intervention  of  the  attorney-general.4  It 
has  been  held  to  be  illegal  to  divide  the  work  between  the  highest  and 
lowest  bidder.9 

178.  What  Remedies  a  Bidder  May  Have.— Contractors  before  demanding 
the  rights  of  the  lowest  bidder  under  the  charter  of  a  city  or  a  special  act  of 
legislature  should  make  sure  that  the  law  requires  the  contract  to  be  given 
to  the  lowest  responsible  bidder.  They  should  have  taken  pains  to  conform 
strictly  to  the  notices,  instructions,  and  ordinances  made  in  regard  to  the 
work.6  A  statute  conferring  the  entire  control  of  the  work  for  procuring 
a  water-supply  upon  water-commissioners,  and  directing  them  to  give  public 
notice  for  proposals,  but  which  does  not  require  them  to  let  the  work  to  the 
lowest  bidder,  was  held  to  give  the  commissioners  full  discretion  as  to  the 
acceptance  or  rejection  of  all  sealed  proposals.7  When  public  officers  have 
exceeded  their  powers  and  deprived  the  lowest  bidder  of  his  lawful  rights  to 
the  award  of  a  contract,  the  question  very  naturally  comes  up  as  to  what 
remedies  he  has  to  recompense  him  for  the  loss  and  the  injustice  he  has 
suffered.  There  are  a  few  cases  to  the  effect  that  if  the  bidder  can  show 
that  he  is  legally  entitled  to  tho  contract  under  the  terms  of  the  act,  he  may 
enforce  the  award  by  mandamus  although  the  contract  has  been  awarded  to 
another  party.  The  lowest  bidder  must  have  used  reasonable  diligence  in 
asserting  his  rights  and  have  done  nothing  to  waive  his  rights.8 

There  are  decisions  to  the  effect  that  the  bidder  has  no  ground  for 
mandamus,  as  he  has  no  cause  of  action  and  no  clear  legal  rights  until  the. 
contract  is  made  and  concluded.9  In  Ohio  it  has  been  held  that  if  the 

'-  Smith   v.  Phila.,  2  Brews.  (Pa.)  443;  Water  Com'rs  of  Jersey  City  (N.  J.  Sup.) 

Follmer    v.   Nuckolls    Co.,   6    Neb.    204;  28  At.1.  Rep.  424. 

Schuinm  v.  Seymour,  24  N.  J.  Eq.  143.  6  Wiggins  v.  Philadelphia,  2  Brews.  (Pa.) 

2  Hoffman    v.   Board  (Mont.),   44    Pac.  444 ;  State  0.  York  Co.  Com'rs,  13  Neb. 
Rep.  973.  57 ;  Weed  v.  Beach,  56  How.  Pr.  (N.  Y.) 

3  Brace,  C.J.,  and  Sherwood  and  Rob-  470;   State  «.  Bartley  (Neb.),   70  N.   W. 
inson,  JJ.,  dissenting.— Verdin  *.  City  of  Rep.  367. 

St.  Louis  (Mo.  Sup.),  33  S.  W.  Rep.  480.  7  Flemminga.  City  of  Suspension  Bridge, 

See  also  Dibble  v.  New  Haven  (Conn.),  56  92  N.  Y.  368  [1883]. 

Conn.    199,  where  the  building  committee  8  Boren  v.  Com'rs  of  Darke  Co.,  21  Ohio 

had  been  instructed  by  vote  to  let  work  to  St.  311  [1871]  ;  Wood's  Master  and  Servant 

lowest  bidder;— no  injunction  was  granted.  (26.  ed.)  162. 

4  Attorney-General  «.  Detroit,  26  Mich.  9  People  0.  Croton  Aq.  Board,  26  Barb. 
263  ;  and  see  Attorney  General  v.  Boston,  (N.  Y.)  240 ;  Weed  v.  Beach,  56  How.  Pr. 
123  Mass.  460.  (N.  Y.)  470  ;  Kelly  «.  Chicago,  62  111.  279. 

6  McDermott   v.   Board    of    Street   and 


178       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  178. 

lowest  responsible  bid  be  rejected  and  any  other  be  accepted,  the  action  of 
the  board  may  be  controlled  by  mandamus  without  doing  violence  to  the 
rule  that  in  matters  involving  judgment  and  discretion  the  board  cannot 
be  controlled  by  mandamus  proceedings.  The  lowest  bidder  must  show  a 
clear  legal  right  in  himself.1  Another  case  holds  that  even  when  a  bid  for 
public  work  has  been  accepted,  and  the  contractor  has  a  clear  right  to  the 
contract,  yet  mandamus  will  not  lie  to  compel  the  commissioners  to  execute 
the  contract;  that  the  proper  remedy  is  an  action  against  the  city  for 
damages.8  It  has  been  held  that  the  lowest  bidder  had  no  right  of  action 
at  law  against  the  city  to  recover  profits  which  he  might  have  made  had  his 
bid  been  accepted.3 

A  recent  case  decides  that  the  provision  in  a  city  charter  that  contracts 
for  public  work  shall  be  awarded  to  the  lowest  reliable  and  responsible 
bidder  is  not  for  the  benefit  of  a  bidder  for  such  work,  but  to  protect 
the  property-holders  and  taxpayers,  and  therefore  the  lowest  reliable  and 
responsible  bidder  has  no  such  vested  or  absolute  right  to  a  compliance 
with  such  provisions  of  the  statutes  as  will  entitle  him  to  maintain  a  suit 
to  enjoin  their  violation  by  public  officials;  that  the  presentation  by  a  reliable 
and  responsible  bidder  of  the  lowest  bid  to  officials  whose  duty  it  is  to  let 
the  contract  to  the  lowest  reliable  and  responsible  bidder,  but  who  have 
the  right,  under  the  statute,  to  reject  all  bids,  and  who  have  given  notice 
in  their  advertisement  for  bids  that  they  reserve  the  right  to  reject  any  and 
all  bids,  does  not  constitute  an  agreement  that  they  will  make  a  contract 
for  the  work  with  such  a  bidder;  nor  does  it  vest  in  him  such  an  absolute 
right  to  the  contract  as  will  authorize  a  court  of  equity,  at  his  suit,  to 
compel  the  officials,  or  the  municipality  they  represent,  to  enter  into  a 
contract  for  the  work  with  him,  when  they  are  about  to  award,  or  have 
awarded,  it  to  a  higher  bidder.4 

Whether  mandamus  will  Ue  is  in  the  discretion  of  the  court;  and  an 
allegation  by  the  board  of  public  works  that  no  appropriation  exists  to  cover 
the  expense  of  the  works,  and  that  they  have  changed  the  design  and 
character  of  the  work  to  be  done,  and  have  decided  that  the  public  interests 
required  that  the  work  should  be  readvertised  and  let  under  proposals 
framed  in  accordance  with  such  alterations,  was  good,  and  a  discretion  they 
might  properly  exercise.5 

A  refusal  to  approve  the  contract  on  the  ground  that  the  work  was  to  be 
done  with  a  certain  brand  of  material  named,  when  it  appears  that  the 
contractor  has  furnished  samples  of  material  of  the  kind  and  quality 
required  and  named,  and  that  the  contract  has  been  made  with  reference  to 
such  samples,  is  technical  and  without  foundation;  but  when  the  contract 

1  State  v.  Bd.  of  Ed.,  42  Ohio  St.  374.  4  Colorado  Paving  Co.  v.  Murphy  (C.  C. 

2  People  v  Campbell,  72  K  Y.  496.  A.),  78  Fed.  Rep.  28. 

3  Talbot  Pav.  Co.  V.  Detroit  (Mich. ),  67  5  People  u.  Croton  Aq.  Board,  49  Barb, 
N.  W.  Rep.  979  ;  East  Riv.  G.  Lt.  Co.  v.  259. 

Donnelly,  93  N.  Y.  557. 


§  179.]  BIDS  AND  BIDDERS.  179 

has  been  given  to  another  party  and  the  work  done,  a  court  in  its  discretion 
would  not  grant  a  writ  of  mandamus  to  compel  the  city  council  to  approve 
the  contract.1 

If  the  act  undertaken  by  the  city  council  or  public  officers  is  unlawful, 
it  seems  fairly  well  settled  that  the  prosecuting  officer  of  the  state  may  file 
a  bill  iii  equity  to  restrain  illegal  acts  or  have  them  corrected;  but  when  the 
officers  had  acted  in  good  faith,  and  by  an  error  of  judgment  committed 
unintentionally,  a  contract  was  let  to  a  bidder  who  was  not  the  lowest,  but 
which  increased  the  expense  by  $20  only,  and  the  contractor  had  incurred 
large  expense  to  carry  out  the  contract,  and  there  was  no  complaint  by 
the  taxpayers,  it  was  held  that  the  amount  was  too  small  to  warrant  any 
interference  by  the  attorney-general.2 

179.  Liability  of  Public  Officers  for  Acts  Discretionary  or  Quasi- 
Judicial;  Misdeeds  in  Awarding  the  Contract.*— It  is  a  well- settled  rule 
that  no  public  officer  is  responsible  in  a  civil  suit  where  his  acts  have  been 
judicial  or  discretionary,  however  erroneous  or  indiscreet  they  may  have 
been.  Some  cases  have  gone  so  far  as  to  hold  that  public  officers  in  their 
judicial  capacity  were  exempt  from  civil  actions,  however  erroneous  or  mali- 
cious their  acts  may  have  been.3  To  a  contractor  this  will  seem  questionable 
law — law  quite  devoid  of  justice.  The  hardships  it  promises  are  tempered 
somewhat  by  many  decisions  that  modify  this  declaration.  It  has  been  said 
that  a  judicial  officer  acting  without  corrupt  or  malicious  motives  is  not 
liable  in  damages  for  an  erroneous  interpretation  or  application  of  the  law 
and  that  this  same  exemption  embraces  his  acts  in  a  gw^m'-judicial  capacity.4 
So  it  has  been  said  by  good  authority  that  certain  acts  and  duties  of  public 
officers  partake  of  the  character  of  legislative  and  judicial  functions,  though 
not  strictly  so;  but  they  may  be  so  far  of  that  nature  as  to  exempt  the 
officers  from  any  liability  for  injuries  resulting  from  their  acts. 

Among  the  duties  and  acts  that  belong  to  this  class  are  those  frequently 
required  of  engineers  and  commissioners,  such  as  the  location  of  sewers  and 
other  improvements,  the  adoption  of  plans  and  the  determination  of  dimen- 
sions and  sufficiency  of  things  which  should  be  distinguished  from  the  sub- 
sequent carrying  out  of  the  plans.  In  the  one  case  the  officers  and  city  are 
considered  as  acting  judicially,  which  excuses  it  and  them  from  liability  for 
injuries  resulting  from  errors  of  judgment,  and  perhaps  even  those  from 
negligence.5!  The  letting  of  contracts  to  the  lowest  responsible  bidder  has 

"•  Talbot  Paving  Co.  0.  Council  of  Detroit  3  East  River  Gas  Co.  v.  Donnelly,  93  N. 

(Mich  ),  51  N.  W.  Rep.  933  [1892] ;  citing  Y.  557,  and  25  Hun  615  [1881]  ;  People  v. 

State  v  Bd.  of  Ed  ,  24  Wis.  683  ;  People  Gleason  (N.  Y.).  25  N.  E.  Rep.  4,  [1890]; 

v.  Contracting  Bd  ,  27  N.  Y.  378  ;  People  19  Amer.  &  Eng.  Ency.  Law  489. 

v    Campbell,    7'2   N.    Y.    496;    People  v.  4  The  Muscatine  R.  Co.  v    Norton,  38 

Kent  (111).  43  N.  E.  Rep.  760;  Kelly  v.  Iowa  33  [1873]. 

Baltimore.  53  Md   134.  5  Bishop's  Hon-Contract   Law,    §    746  ; 

2  Dillon's   Mimic.    Corp'ns    §    912    and  Kirchman  v.  West  &  S.  T.  Ry.  Co.,  58  111. 

note;   see   also   15   Amer.    &  Eng.   Ency.  App.  515. 
Law  1093,  not*. 

*  Sc-e  also  Sees.  244-259,  infra.  f  See  Sees.  245-8  and  244-259,  infra. 


180        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  180. 

been  held  a  judicial  act,  for  the  erroneous  exercise  of  which  no  action  would 
lie  against  the  city.1  The  act  should  clearly  be  one  which  requires  the 
-exercise  of  judgment  and  discretion  of  a  judicial  or  legislative  nature,  or 
its  corrupt  or  negligent  performance  will  create  a  liabilty  to  the  injured 
party.3 

In  New  Jersey  it  has  been  held  that  when  a  city  charter  or  act  of  legis- 
lature expressly  prohibits  the  making  of  a  contract  for  work  without  having 
previously  advertised  for  proposals  in  a  prescribed  mode,  an  award  of  a 
contract  by  a  city  official  without  such  previous  advertisement,  made 
willfully  and  with  evil  intent,  has  been  held  to  constitute  a  criminal  offense, 
and  to  render  the  officer  liable  to  indictment.  It  was  the  officer's  duty  to 
award  the  contract  to  the  lowest  responsible  bidder,  and  a  charge  that 
the  officer  willfully  and  corruptly  gave  the  contract  to  a  bidder  who  had 
not  offered  the  more  advantageous  terms  was  held  to  constitute  a  criminal 
offense.* 

Neither  the  city  nor  its  board  is  liable  to  an  action  of  damages  for  refus- 
ing to  accept  the  lowest  offer  or  tender  made,  if  the  refusal  is  in  good  faith 
and  judgment.4  The  duty  to  award  the  contract  has  been  held  a  duty  to 
the  public,  and  not  to  an  individual,  for  the  violation  of  which  duty  the 
statute  gave  no  action;  the  lowest  bidder  could  not  therefore  recover  profits 
he  would  have  made  if  the  contract  had  been  awarded  to  him.5  It  is  well 
settled  that  the  city  is  not  liable  for  damages  arising  from  the  rejection  of 
the  lowest  bid  by  a  department  of  public  works  intrusted  with  its  works. 
This  was  held  even  when  the  statute  declared  that  the  contract  "  shall  be  let 
to  the  lowest  bidder  at  the  time  of  the  opening  of  the  bids,  and  shall  be  forth- 
with duly  executed  with  such  lowest  bidder."  ' 

Selectmen  who  have  been  directed  at  a  town  meeting  to  contract  for  a 
public  work,  "the  proposal  to  be  advertised  and  the  contract  given  to  the 
lowest  bidder,"  and  who  advertised  for  work  and  reserved  to  themselves  "  the 
right  to  reject  all  bids  if  none  were  satisfactory,"  were  held  to  be  authorized  to 
refuse  to  award  the  contract  to  the  lowest  bidder  and  to  reject  all  bids,  and 
that  the  bidder  had  no  right  of  action  against  the  town  on  the  contract,  nor 
for  time  and  money  spent  in  making  estimates  of  the  work,  and  that  his 
rights  were  not  affected  by  a  subsequent  town  meeting  referring  the  whole 
matter  to  the  selectmen  to  build  at  the  earliest  possible  moment.7 

180.  Liability  of  Public  Officers  for  Ministerial  Acts.— If  the  duties  of 
the  public  officer  are  not  discretionary  or  of  a  judicial  nature,  he  is  liable  for 

1  Bishop's  Non-Contract  Law,  §  747.  Munic.  Corporations. 

2  Bishop's  Non-Contract  Law,  §  748.  '  Palmer  0.  Harerhill,  2   Amer.   Corp. 

3  State®.  Kern,  51  N.  J.  Law  259  [1889].  Cas.    450;    s.    c.,    98  Mass.    487  [1868]  ; 

4  Dillon's  Munic.  Corp.  (4th  ed.),  cases  Peeples  v.  Byrd  (Ga.),  25  S.  E.  Rep.  677; 
collected,  §  470.  Murdough  v.  Town  of  Revere  (Mass.),  42 

5  East  River  Gas  Lt.  Co.  v.  Donnelly,  93  N.  E.  Rep.  502  ;  and  see  Audsley  v.  New 
!N.  Y.  557.  York  (C.  C.  A.),  74  Fed.  Rep.  274,  wJiere 

6  Walsh  v.   New  York  City,  20  N.  E.  architects  were  invited  to  submit  competitive 
Rep.  825  [1889]  ;  s.  c.,  113  N.  Y.  142;  and  prize  plans,  and  the  project  was  abandoned. 
#ee    Meecheni    on    Agency,  and    Dillon's 


§182.]  BIDS  AND  BIDDERS.  181 

negligence  or  wrongdoing  to  any  one  sustaining  special  damage  in  conse- 
quence thereof.  So  held  when  the  same  powers  and  duties  which  once 
belonged  to  a  public  officer  were  bestowed  upon  a  contractor.  Contractor 
was  held  responsible.1 

When  commissioners  have  accepted  a  proposal  and  directed  a  contract 
to  be  made  with  the  bidder,  but  later  they  rescinded  the  resolution  and 
resolved  to  do  the  work  themselves  on  plans  reported  by  and  under  the- 
supervision  of  a  committee,  and  to  appoint  a  superintendent  of  the  work; 
they  are  undertaking  to  carry  out  the  work  which  as  judicial  officers  they  had 
resolved  on  and  they  cease  to  act  as  officers  exercising  judicial  and  legisla- 
tive duties,2  and  become  liable  individually  for  the  consequences  of  their 
negligent  acts,  the  city  being  relieved  from  responsibility.2 

So,  too,  public  officers  intrusted  with  the  conduct  of  public  work  are  sub- 
ject to  a  personal  action  for  damages  if  they  have  willfully  exceeded  their 
powers  or  have  maliciously  or  corruptly  transgressed  their  prescribed  duties. 
The  element  of  malice  and  corruption  must  exist  when  public  officers  are 
clothed  with  discretionary  powers,  for  a  court  will  not  inquire  into  them  so- 
long  as  they  are  honestly  exercised.3 

Though  the  members  of  a  common  council,  acting  judicially  in  deter- 
mining who  is  the  lowest  bidder,  are  not  liable  in  a  civil  action  or  a  criminal 
prosecution  for  their  action,  yet  such  immunity  cannot  be  evoked  by  a 
higher  bidder,  who  has  been  given  the  contract,  to  establish  the  validity  of 
the  contract;  nor  will  the  fact  that  the  council  has  audited  and  allowed  the. 
claim  give  it  any  validity.4  * 

181.  Bids  Cannot  be  Recalled. — When  bids  have  been  made  and  accom- 
panied by  certified  checks,  they  cannot  be  recalled  or  withdrawn  neither 
before  nor  after  the  bids  are  opened — not  even  by  permission  of  the  public 
officers  who  have  the  work  in  charge  and  who  award  the  contract.5 

Public  officers  are  invested  with  no  discretion  to  permit  amendments  or 
alterations  of  proposals  on  account  of  any  alleged  mistake  therein,  unless  ; 
the  fact  of  such  mistake  and  the  requisite  data  for  its  correction  are  appa- 
rent on  the  face  of  the  proposal.6  * 

182.  The  Acceptance  or  Award.— A  notice  to  the  public  of  proposed 
works,  asking  for  proposals,  is  an  invitation  for  tenders  or  a  request  for  offers, 
and  cannot  be  regarded  as  an  offer  to  be  accepted  by  the  person  who  makes 
himself  the  lowest  bidder.     The  tender  or  proposal  submitted  by  the  bidder 
must  be  accepted  before  a  contract  is  created.7     Not  until  the  proposal  of  the- 

1  Robinson  v.  Chamberlain,  34  N.  Y.  389     N".  Y.  557. 

[1866].  5Kimball  v.  Hewitt,  2  K  Y.  Supp.  69T 

2  Robinson  v.  Rohr   (Wis.),  40  N.  W.      [1888].     A  like  decision  was  rendered  by 
Rep.  668  [1888].  the  attorney-general  of  the  United  States  in. 

3  Edwards    <o.  Ferguson,    73    Mo.    686     June,  1895. 

[1881],  and  case*  cited.  6  Beaver  v.   Trustees,    19  Ohio  St.  97- 

4 Peoples  Gleason  (K  Y.),  25  K.  E.  R.      Twiss  v.  Port.  Huron,  63  Mich.  528. 
4  [1890]  ;  Gas  Light  Co.  v.  Donnelly,  93         7  Dillon   Munic.  Corp.  (4th  ed.),  §470; 

*  See  Liability  of  E  -gineer,  Sees.  226-259,  infra. 


182    ENGINEERING  AND  ARCHITECTURAL  JURlSPHUD&tfCS.     [§  183. 

bidder  is  accepted  are  the  contract  rights  created,  and  both  parties  liable  to 
damages  for  refusing  to  carry  it  out.  When  written  proposals  for  work  to 
be  done  are  followed  by  a  written  bid  and  a  written  acceptance  of  such  a  bid 
by  the  proper  authorities,  a  binding  contract  is  created  to  do  the  proposed 
work.1  * 

183.  What  Constitutes  an  Acceptance  of  the  Proposal  or  an  Award  of  the 
Contract. — A  bid  made  according  to  advertisement  and  accepted  by  the 
proper  authority  creates  a  contract  of  the  same  force  as  if  a  formal  contract 
had  been  written  out  and  signed  by  the  parties.2  The  award  of  a  contract  to 
the  lowest  bidder  creates  a  binding  contract  on  behalf  of  the  city  to  subse- 
quently execute  a  contract,  for  a  breach  of  which  the  city  is  liable  in  damages 
to  the  bidder.3  The  record  of  the  proceedings  of  a  school  board,  signed  by 
the  secretary  thereof,  reciting  a  resolution  to  accept  the  bid  of  one  of  its  own 
members  to  furnish  supplies,  is  sufficient  evidence  of  the  contract.4  The 
acceptance  must  be  in  the  terms  of  the  proposal,  without  changes  or  modifi- 
cations of  the  contract,  plans,  or  specifications.  An  acceptance  in  other 
terms  is  but  a  counter  offer,  and  it  may  invalidate  the  offer  unless  the  change 
be  agreed  to  by  the  bidder.5  *  A  bidder  will  be  entitled  to  refuse  to  sign,  and 
be  justified  in  so  doing,  when  the  formal  written  contract  presented  for  his 
signature  contains  stipulations  not  in  the  advertisement  proposal  and 
records.6  If  he  does  sign  the  agreement  he  will  be  bound  by  it,  the  bid 
being  held  to  be  merged  into  the  formal  contract.7 

If  the  acceptance  is  unqualified  and  no  new  terms  are  contemplated,  it  is 
irrevocable  and  binding.  A  subsequent  notification  that  the  acceptance 
was  reconsidered  is  no  defense  to  an  action  on  the  contract.8  If  the  bid  be 
regularly  made  and  it  is  the  lowest,  the  acceptance  of  it  creates  a  vested 
right  to  the  contract,  which  cannot  be  taken  away  by  subsequent  legislation 
without  just  compensation.9 

A  lowest  bidder  to  whom  the  contract  was  awarded  does  not,  by  accepting 

Doyle  v.  Dusenberg,  74  Mich  79;  Howard  N.  Y.  Supp.  798  ;  Gt.  Northern  R.  Co.  v. 

u  School,  78  Me.  231  [1886]  ;  Spencer  v.  Witham,  L.  R.  9  C.  P.  16: 

Harding,  L.  R.  5  C.  P.  561  [1870]  ;  see  2  4  Alexander  v.  Johnson  (Ind.  Sup.),  41 

Engineering    Magazine    481-487  ;  Forster  N.  E.  Rep.  811. 

«.  Ulman.  64  Md.  523.  5  Tuttle  v.  Love,  7  Johns.  (N.  Y.)  470  ; 

1  Wiles  v.  Hoss  (Ind.),  16  N.  E.  Rep.  800  Highland  Co.  v.  Rhoades,  26  Ohio  St.  411  ; 
[1888],   114  Ind.  371  [1887]  ;  Jackson  v.  N.  Howard    v.    Indus.    Sch..    78    Me.    230; 
Wales  Ry.  Co.,  1  Hall  &  T.  75;  s.  c.,  6  Ry.  Hughes  0.  Clyde,  41  Ohio  St.  339;  and  see 
Cas.  112.     A  schedule  of  prices  for  work  Martine    v.    Nelson,  51    111.  422;   Loyd's 
and  materials  signed  by  the  parties  has  been  Building  and  Buildings  93. 

held  not  to  be  a  written  contract  for  the  6  Highland  Co.  v.  Rhoades,  26  Ohio  St. 

erection  of  a  building.     Eyser  v.  Weisger-  411. 

ber.  2  Iowa  463.  'Taylor  v.  Fox,  16  Mo.  App.  527;  sem- 

2  Garf el de  a.  United  States,  93  TJ.  S.  242;  ble,    Kimberly  v.  Dick,   41   L.  J.   Ch.  88 
Lewis  v.  Brass,  L.  R.  3  Q.  B.  D.  667  [1877] ;  [1871]. 

The  Guardians  «.  McLoughlin,  4  Ir.  Rep.  8 Safety  Insulated  Wire  and  Cable  Co.  v. 
C.  L.  457  [1856].  Baltimore  (C.  C.  A.),  66  Fed.  Rep.  140. 

3  Lynch  v.  City  of  New  York  (Sup.),  37         9  In  re  Protestant  Epis.  School,  58  Barb. 

(K  Y.)  161. 

*  See  Law  of  Contracts,  Sees;  88-97,  supra. 


§  183.]  BIDS  AND  BIDDERS.  183 

a  return  of  the  deposit  made  by  him  with  his  bid,  after  he  had  notice  that 
his  bid  had  been  rejected,  and  after  he  had  protested  against  reletting  the 
work,  and  the  commissioner  had  readvertised  the  proposals  for  bids, 
thereby  waive  his  right  to  insist  upon  performance  of  the  obligation  created 
by  the  acceptance  of  his  bid.1 

An  acceptance  of  a  bid  in  writing  which  states  that  a  contract  shall  sub- 
sequently be  entered  into  is  a  conditional  acceptance,  and  binds  both  the 
bidder  and  the  acceptor.2  Though  the  acceptance,  may  not,  with  the  bid, 
constitute  the  contract,  it  has  been  held  to  give  the  bidder  a  legal  right  to 
the  contract  if  he  complies  with  the  requirements  imposed  in  the  advertise- 
ment.3 An  act  passed  by  the  legislature  subsequent  to  the  award  of  con- 
tract, but  prior  to  its  formal  execution,  changing  and  fixing  the  plans  of  the 
work,  cannot  affect  the  validity  of  the  contract.4 

It  has  been  held  that  the  fact  that  it  was  contemplated  that  a  written 
agreement  should  be  executed  did  not  prevent  the  proposal  and  its  accept- 
ance from  becoming  a  complete  contract.5  When  it  is  announced  in  the 
advertisement  that  a  formal  contract  will  be  prepared  and  signed,  or  the 
proposal  is  made  dependent  upon  such  a  contract  being  entered  into,  then 
the  acceptance,  it  seems,  does  not  create  the  contract ;  at  least  it  has  been 
held  that  the  work  might  be  abandoned  altogether.6  * 

Public  officers  and  owners  will  save  trouble  if  they  always  make  the 
acceptance  of  a  proposal  conditional  on  the  bidder  signing  a  contract  of  the 
prescribed  form  and  furnishing  approved  sureties  for  the  execution  and 
completion  of  the  work. 

Whether  an  acceptance  of  a  proposal  creates  a  contract,  or  whether  it  is 
a  subsequent  contract  to  be  entered  into,  is  a  question  of  intention  of  the 
parties  when  the  proposal  was  made  and  the  acceptance  communicated.7 
If  the  acceptance  be  made  "subject  to  the  signing  of  a  formal  contract/' 
or  "subject  to  the  preparation  and  approval  of  a  written  contract,"  it  must 
be  taken  for  what  it  says,  and  no  different  intention  can  be  shown.8 

If  the  bid  be  conditional,  the  condition  must  be  performed  before  the 
contract  can  be  completed.9 

The  fact  that  the  owner  or  his  architect  said  to  one  of  the  bidders,  "You 
are  the  lucky  man,"  has  been  held  merely  a  recognition  that  he  is  the  lowest 

1  Lynch  v.  City  of  New  York  (Sup.),  37      46  N.  E.  Rep.  387. 

N.  Y.  Supp.  798.  7  Lewis  v.  Brass,  L.  R.  3  Q.  B.  D.  667  ; 

2  Crossly  v.  Maycock,  L.  R  18  Eq.  180.  Crossly  ®.  Maycock,  L.  R.  18  Eq.  180. 

3  Hughes    0.    Clyde,   41   Ohio   St.    339 ;  8  Winn  v.    Bull.   L.  R.   7  Ch.  Div.  29 
Lewis  v.  Brass,  L.  R.  3  Q.   B.  D.  667  ;  see  [1877]  ;  and  see  Comm'rs  v.  Fetch,  10  Ex. 
also  The  Guardians  ®.    McLoughlin,  4  Ir.  611,  and  Spencer  v.  Harding,  L.  R.  5  C. 
Rep.  C.  L.  457  [1856].  P.  561  ;  Mainprice  «.   Wesley,  6  B    &  S. 

4  In  re  Protestant  School,  58  Barb.  (N.  420.     And  see  other  English  cases  in  Em- 
Y.)  161.  den's  Law  of    Building,  etc.,  pp.  58,  59; 

5  Adams  v.    United  States,  1  Ct.  of  01.  but  see  Eadie  ®.  Addison,  52  L.  J.  Ch.  80, 
192.  47  L.  T.  543,  contra. 

6  Municipal  Sig.  Co.  -».  Holyoke  (Mass .),  9  Howard  v.  School,  78  Me.  230. 

*  See  Sees.  171, 176,  supra. 


184        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  183. 

bidder,  but  not  equivalent  to  awarding  the  contract  to  him.1  And  when  the 
engineer  informed  a  bidder  in  writing  that  his  tender  was  accepted,  and  that 
intimation  was  confirmed  by  the  directors  of  the  company  upon  his  attend- 
ance at  one  of  their  meetings,  no  document  being  executed  accepting  the 
tender  in  such  a  manner  as  to  be  binding  at  law,  and  the  project  was  after- 
wards  abandoned,  it  was  held  that  the  contractor  could  not  compel  the  com- 
pany to  execute  a  contract,  nor  could  he  recover  from  them  the  loss  he  had 
sustained  in  preparing  for  the  works.2 

A  bid  properly  made  under  valid  and  regular  proceedings  and  once 
accepted,  and  the  contract  awarded  to  the  lowest  bidder,  is  good  always.* 
A  contract  so  made  cannot  be  destroyed  by  the  rescission  of  the  ordinance  by 
the  council;4  but  if  the  ordinance  has  not  been  legally  passed,  any  and  all 
proceedings  under  it  are  invalid,  and  a  contract  under  such  an  ordinance 
gives  a  contractor  no  rights  to  recover  damages  for  refusing  him  the  work.* 
A  written  proposal  and  an  oral  acceptance  thereof  have  been  held  not  to- 
constitute  a  written  contract.6  But  a  written  bid  and  a  verbal  acceptance 
by  a  managing  receiver,  and  a  signing  of  the  specifications  and  plans  by  the 
bidder  and  the  company's  architect,  have  been  sustained  as  a  binding  con- 
tract.7 Proceedings  which  consist  of  opening  bids  and  awarding  the  work, 
without  stating  the  amount  of  the  bids  submitted,  or  the  sum  for  which 
the  work  was  awarded,  have  been  held  sufficient  to  authorize  the  con- 
tract.8 

Where  a  contractor's  bid  for  the  construction  of  a  building  is  accepted, 
and  the  terms  of  the  building  contract  are  left  to  be  stated  in  a  writing 
subsequently  entered  into  by  the  parties,  that  writing  is  the  highest  evidence 
of  the  terms  of  the  building  contract.9 

The  proceedings  of  public  officials  in  opening  the  bids  and  awarding 
contract  is  such  business  as  should  be  overt  and  open  to  public  inspection. 
Frequently,  therefore,  the  bidders  are  invited  to  be  present  when  the  pro- 
posals are  opened. 

When  the  charter  requires  that  bids  shall  be  opened  on  the  day  named 
in  the  notice,  or  on  such  subsequent  day  as  the  council  might  adjourn  to,, 
and  provides  that  the  "council  shall  determine  which  proposal  is  most 
favorable,"  it  does  not  require  the  determination  of  such  question  at  the 
meeting  at  which  the  bids  are  opened.10 

1  Leskie  v.  Haseltine,  155  Pa.  St.  98.  '  Girard  L.  Ins  Co.  v.  Cooper,  16  Supp, 

2  Jackson  v.  The  N.  W.  Ry.  Co.,  1  Hall      Ct.  Rep.  879. 

&  Twelle  R.  75  [1848].  8  Megrath  v.  Gilmore  (Wash.),  39  Pac. 

3  Lewis  v.  Brar<s,  L.  R.  3  Q.  B.  Div.  667.  Rep.  131. 

4  Baird  v.  Mayor,  23  K  Y.  254.  9  Town  of  Hamilton  v.  Chopard  (Wash.), 

5  Baird  v.  Mayor,  83  N.  Y.  254  ;  but  see  37  Pac.  Rep.  472. 

Carey  0.  E.  Saginaw  (Mich.),  44N.W.  Rep.          10  Lilienthal  v.  City  of  Yonkers  (Sup.), 

168,    [1890],    where   contract  was  not  in  39  N.  Y.   Supp.  1037 ;  and  see  People  v. 

writing  and  sealed,  as  charter  required.  Yonkers,  39  Barb.  (N.  Y.)  266.     See  also 

6  Specht  v.  Stevens  (Neb.),  65  N.  W.  Rep.  Mayor  v.  Keyser  (Md.),  19  All.  Rep.  706, 
879;  accord,  Bruce  v.  Pearsall  (N.  J.),  34  and  People  «.  Croton  Aq.  Bd.,  26  Barb. 
Atl.  Rep.  982.  (N.  Y.)  240. 


§  184.]  .       BIDS  AND  BIDDERS.  185 

If  the  bidder  has  made  a  mistake  and  withdraws  his  proposal  after  ifc 
has  been  accepted,  he  may  be  held  liable  to  the  owner  for  what  the  work 
costs  in  excess  of  his  bid.1  Fraud  or  false  misrepresentations  by  the  owner 
or  his  authorized  agents  as  to  the  character  of  the  work  undertaken,  and 
an  immediate  notification  as  soon  as  discovered  by  the  bidder,  will  relieve 
him  from  his  original  offer,  as  it  would  also  from  the  contract.* 

The  mere  fact  that  a  party  is  the  lowest  bidder,  and  knows  that  fact, 
does  not  constitute  an  award  to  him  of  such  contract  under  an  act  regulat- 
ing the  letting  of  work  upon  competitive  bids,  which  provides  that  "  if  the 
lowest  bidder  shall  refuse  or  neglect,  within  five  days  after  due  notice  that 
the  contract  has  been  awarded,  to  execute  the  same,  the  deposit  made  by 
him  shall  be  forfeited  to  the  city." 3  * 

184.  Bid  to  Furnish  Materials.— If,  in  answer  to  an  advertisement  for 
proposals  to  supply  goods,  to  furnish  materials,  or  to  perform  work,  a  bidder 
submits  a  bid  offering  to  furnish  the  materials  or  do  the  work  in  such 
quantities  or  at  such  times  as  may  be  ordered,  which  bid  is  accepted,  it 
has  been  held  that  the  bidder  is  bound  to  supply  the  goods  or  perform  the 
work  when  ordered  although  there  is  no  binding  contract  on  the  part  of  the 
acceptor  to  take  or  order  anything,  and  that  there  is  sufficient  consideration 
for  the  bidder's  promise.4  If  this  is  good  law  and  the  bidder's  offer  cannot 
be  recalled  or  revoked,  contractors  and  materialmen  will  do  well  to  limit 
their  proposals  as  to  quantity  and  time,  so  that  they  may  not  be  compelled 
to  carry  a  stock  of  materials,  or  hold  themselves  in  readiness  to  perform 
such  a  contract,  for  an  indefinite  length  of  time. 

If  the  dealer  or  manufacturer  is  bound  to  furnish  materials  when  ordered, 
it  would  seem  that  there  would  be  a  reciprocal  obligation  on  the  part  of  the 
one  inviting  the  bids  to  order  from  the  bidder  what  materials  he  required 
or  purchased  during  the  period  named.  So  it  has  been  held.5  A  contract 
to  furnish  stone  "at  such  times  and  in  such  quantities  as  may  be  required " 
was  construed  to  refer  to  the  needs  of  the  work  or  service." 

A  contract  to  furnish  materials  in  which  the  quantities  were  stated  as 
"more  or  less,"  and  it  was  agreed  that  the  materials  should  be  delivered  in 
such  quantities  "as  shall  be  directed  by  the  treasurer  and  according  to  the 
specifications  and  the  requirements  of  the  treasurer  under  them,"  and  pay- 

1  Lewis  0.  Bras^,  L.  R.  3  Q.  B.  D.  667.  4  Gt.  Northern  Ry.  Co.  •w.Witham,  L.  R. 

2  Martinet*.  Nelson,  51  111.  422.  9  C.  B.  16  [1873]. 

3  Erving  i\  City  of  New  York  (N.  Y.  5  Levey  v.  N.  Y.  Central  R.  Co  ,  24  N. 
App  ),  29  N.  E.  'Rep.   1101,  affirming  16  Y.  Supp.  124. 

N.  Y.  Supp.  612.  «  Mueller  v.  United  States.  19  Ct.  of  01. 

581. 

*  The  form  of  Instiuctions  to  Bidders  has  been  made  more  comprehensive  than  or- 
dinary work  will  require,  but  it  is  submitted  that  frequently  circumstances  exist  where 
they  all  may  have  a  bearing,  and  conditions  will  arise  which  may  be  met  by  the  clauses 
here  given. 

If  the  circumstances  do  not  require  the  use  of  all  the  clauses  given,  the  engineer  or 
architect  may  omit  such  clauses  as  seem  unnecessary  by  and  with  the  advice  or  consent 
of  the  company's  or  owner's  legal  adviser. 


186        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  185. 

cients  were  "to  be  made  upon  the  engineer's  certificate  that  the  quantities 
have  been  delivered  as  per  requisition  and  in  accordance  with  the  specifica- 
tions," the  words  more  or  less  always  following  each  statement  of  quantity, 
was  held  to  be  a  contract  for  only  what  materials  were  needed,  and  that  no 
damages  could  be  recovered  for  not  taking  the  quantities  stated  in  the 
specifications.1 

If  proposals  are  made  for  certain  materials,  as  the  stone  in  an  old  struct- 
ure about  to  be  torn  down,  specifying  no  limitations  or  qualifications,  an 
unconditional  acceptance  thereof  has  been  construed  a  contract  for  all  the 
materials  specified  [stone].3 

185.  Form  of  Proposal  for  Public  Work. 

PROPOSAL 

FOR  THE  CONSTRUCTION;  ERECTION;  FOR  IMPROVING,  BEHOVING,  AND 
BUILDING;  TO  FURNISH  ALL  THE  LABOR,  TOOLS  AND  MATERIALS; 

TO  FURNISH  AND  DELIVER,  TO  EXAVACATE,  ETC.  ETC NEAR, 

OR  ON,  OR  OVER STREET,  WAY,  OR  RlVER  AT 

CITY,  TOWN  OF ,  COUNTY  OF ,  STATE  OF 

COUNTRY. 

To  the  Chief  Engineer,  Architect,  or  Surveyor. 
To  the  Board  or  Commissioner  of  Public  Works. 
Dear  Sir  or  Gentlemen. 

We ,  the  President,  Secretary,  Treasurer,  and  General  Man- 
ager of Company,  a  corporation   duly  authorized  by  act  of 

•Congress  or  Legislature ,  18  . . . .,  to  contract  and  to  do  such 

other  business  as  is  required  under  the  annexed  contract. 

The  undersigned  do[es]  hereby  declare  : 

1.  Not  in  Arrears  or  Default.— That  I,  [We  or  the Company,] 

am  [are  or  is]  not  in  arrears  to  the Company,  City,  or  State, 

upon  debt  or  contract  or  by  default  as  surety  or  otherwise. 

2.  Capacity  to  do  Work. — That  I,  [We  or  the Company  or 

Firm,]  have  [has]  been  regularly  engaged  in  contract  work  or  in  build- 
ing or  in  the  erection  of of  the  class  of  work  required  by  the 

annexed  contract  and  specifications  for years,  and  that  I  [We  or  it] 

respectfully  invite  attention  to  the   following  works  that   have  been 

erected  by  me  [or  us  or  the  said Company],  and  respectfully 

refer  to  the  following  parties  for  whom  I  [We  or  it]  have  performed 
construction   work :     The   New  York  and    Brooklyn  Bridge,  erected 
1870-1883,  for  the  New  York  and   Brooklyn    Bridge   Trustees,  cost 
$15,000,000  ;  Office  Building  for  The  Manhattan  Life  Insurance  Co., 
16  stories,  67  ft.  by  125  ft.,  72  Broadway,  New  York,  1893;  etc.  etc. 

3.  No  Help  from  Engineer's  Office.— That  this  estimate  and  proposal 
submitted  has  been  prepared  without  any  assistance  from  any  person 
belonging  to,  employed  by,  or  holding  office  in  the  Engineering  [Ar- 
chitectural] Department,  or  the  Department  of  Public  Works  of  the 


Collmeyer  v.  Mayor,  83  N.  Y.  116.  2  Thorn  v.  Comm'rs,  32  Beav.  490. 


§  185.]  BIDS  AND  BIDDERS.  187 

i 

4.  No  Employee  or  Officer  Interested. — That  no  member  or  delegate 
. . . . ,  nor  any  person  acting  for  or  employed  by  the  Department  of 
Public  Works  of  the  City,  [State,  or  United  States,]  nor  any  person 
appointed  by  virtue  of  any  city  ordinance,  [legislative  act,  or  act  of 
Congress]  relative  to  the  work,  is  directly  or  indirectly  interested  in  this 
proposal  or  in  the  supplies  or  works  to  which  it  relates,  or  in  any  portion 
of  the  profits  thereof  contrary  to  the  ordinance  or  laws  of  the  City, 
[State,  or  United  States ]. 

5.  Bidder  is  the  only  Person  Interested. — That  I  [We,  the 

Company,]  am  [are,  is]  the  only  party[ies]  interested  in  this  proposal  or 
in  the  contract  proposed  to  be  taken ;  that  it  is  made  without  any  con- 
nection with  any  other  person  or  persons  making  any  proposal  for  the 
same  work,  and  that  it  is  in  all  respect  fair  and  without  collusion  or 
fraud. 

51.  Bidder  alone  Interested. — And  I  [We,  or  the Company], 

of City, County, State,  do  further  declare 

that  I  [We  or  It]  am  [are  or  is]  the  only  personfs],  party  or  parties 
interested  in  this  proposal,  and  that  no  other  person  than  the  person 
herein  named  has  any  interest  in  this  proposal  or  in  the  contract 
proposed  to  be  taken. 

6.  Ordinance,  Charter,  or  Act  Examined. — That  I  [We]  have  examined 

and  am  [are]  familiar  with  the  Ordinances ,  [Acts  of  Legislature, 

Act  of  Congress,  or  Charter  of  the  City  or  Company,]  mentioned  in  the 
Advertisement  and  Instruction  to  Bidders,  annexed,  and  relating  to  the 
work  in  question,  and  will  undertake  to  conform  to  such  laws,  ordi- 
nances, and  charter. 

7.  Locality  Examined  and  Quantities  Estimated. — That  I  [We],  with 
our  Engineer,  have  personally  examined  the  location  of  the  proposed 
work,  and  have  satisfied  myself  [ourselves]  as  to  the  amount  and  charac- 
of  the  work  and  materials  necessary  to  complete  the  work  according  to 
the  annexed  plans,  specifications,  and  contract. 

8.  Terms  and  Prices. — That  I,  [We]  the  undersigned,  further  declare 
that  I  [We]  have  carefully  examined  the  annexed  form  of  contract, 

prepared   by ,  and   that  I  [We]   will    contract  to  provide  all 

necessary  machinery,  tools,  apparatus,  and  other  means  for  the  con- 
struction and  do  all   the  work   called   for   by  the  said  contract   and 
specifications  and  furnish  all  materials  called  for  in  the  bill  of  quan- 
tities, contract,  and   specifications   in  the  manner   therein  prescribed 
and  according  to  the  requirements  of  the  Engineer,  as  therein  pro- 
vided, upon  the  following  terms  and  for  the  following  sums  [prices], 
to  wit : 

Item  (a) $ Item  (b) $ Item  (c) $ 


81.  That  I  [We]  [the  said  Company],  undersigned,  do  hereby  offer  to 
perform  the  whole  of  the  work  and  furnish  all  materials,  labor,  watch- 
men, implements,  tools,  and  machinery  of  every  description  necessary 
for  the  perfect  construction  and  completion  of  the  work  contemplated 
in  the  annexed  specifications,  in  accordance  with  the  plans,  specifications, 
contract,  etc.,  which  have  been  examined  by  me  [us]  at  the  office  of 
the  Engineer,  and  to  conform  to  all  the  conditions  appended  hereto  at 
and  for  the  prices  given  in  the  attached  schedule. 


188     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  185. 


Approximate 

Price 

Quantities. 

[Written  out.] 

[Figi 

ires.] 

Slashing,  clearing,   close  cutting, 
<ii  id  grubbing      ..       

$ 

C. 

2,000  cub.  yds. 

EXCAVATIONS,   all    kinds,   in    any 
soil,    including    all    incidentals 

Per  cubic  yd. 

500  cub.  yds.  .  . 

MASONRY,  in  abutment  and  wing 
walls,  including    newels,  tet  in 
Portland  cement        

« 

420  cub.  yds.  .  . 

MASONRY,  in  piers  for  trestle-bents, 
set  in  Portland  cement    

« 

If  required  .  . 

In  12-inch  cedar  piles    

Per  lineal  ft 

100  cub  yds  .  . 

Per  cubic  yd. 

If  required  .  .  . 

Per  M.  B  M. 

147,0001bs  

Steel  in   main  girders    and  wind 

Per  Ib  

4,800  Ibs  

Wrought-iron  standards  for  side- 

« 

2  000  ft  ..    . 

^VVought-iron    gas-tube   for    side- 

Per  foot  .... 

11,800  Ibs  .. 

Cast-iron  handrail  standards      .... 

Per  Ib 

152,000  F.B  M 

Timber  decking        .                 

Per  M  B  M 

1,500  Ibs  

Sheet  lead       .  .           .         

Per  lo 

Q 

Ornamental  lamp*  fixed  

Each 

Etc.,  etc.,  etc. 

9.  Special  Terms  and  Prices. — For  all  lumber  used  for  sheeting  and 

shoring,  but  left  in  place  by  order  of  the  Engineer,  the  sum  of 

per  M  feet,  B.  M. 

For  all  extra  work  not  included  in  the  above  items,  by  written  order 
of  the  Engineer,  the  various  prices  set  against  the  following  several 
items : 

Laborers per  day. 

Single  teams  and.  drivers per  day. 

Double  teams  and  drivers per  dav. 

First-class  masons per  day. 

"        "     blacksmiths per  day. 

Helpers '. per  day. 

Foremen per  day. 

For  all  extra  work  done  and  extra  materials  furnished  by  written 
order  of  the  Engineer,  not  contemplated  by  this  contract,  the  actual  cost 
of  said  work  and  materials,  as  determined  by  the  Engineer,  plus  fifteen 
(15)  per  cent,  of  said  cost. 

For  all  earth  excavation  of  extra  depth  below  grade,  made  by  written 

order  of  the  Engineer,  except ,  the  sum  of per  cubic 

yard. 

10.  Prices  Include  Everything. — The    above  prices  are  to  include 
the  cost  of  doing  all  other  work  required  by  the  contract  and  specifi- 
cations or  appertaining  thereto. 

101.  What  Prices  Include. — The  prices  named  are  to  include  [cover] 
any  and  all  work  and  materials  that  may  be  necessary  to  connect  the 
work  done  with  the  adjoining  work  in  a  proper  and  workmanlike  man- 


§  185.]  BIDS  AND  BIDDERS.  189 

ner,  and  in  accordance  with  the  plans,  sections,  and  profiles  prepared  by 
the  Engineer,  and  according  to  the  terms  of  the  contract  and  specifica- 
tions attached,  and  the  rules  and  regulations  of  the  city,  and  under  the 
direction  and  to  the  satisfaction  of  the  Engineer,  at  the  following  rates, 
to  wit : . 

10a.  Prices  Include  Everything. — The  prices  are  to  cover  all  expenses 
of  every  kind  involved  in,  or  incidental  to,  the  completion  of  the  con- 
tract, including  any  claims  that  may  arise  through  delay  from  any  cause 
in  the  performance" of  the  work  thereunder. 

11.  Delivery.  —  The  prices  are  also  to   include   the   delivery  of  all 
materials  on  the  wharf,  or  at  the  works,  or  at  the  structure,  etc.,  on 
the ......  street,  river,  way,  of  the  city  of 

12.  Samples  Submitted. — The  bidder  pursuant  to  the  [annexed]  in- 
structions to  bidders  has  prepared  and  herewith  submits  the  following 
samples  of  materials  and  workmanship,  the   equal  of  which  he  will 
undertake  to  furnish  throughout  the  execution  of  the  work  according 
to  the  contract  and  specifications.     The  samples  are  marked  as  follows  : 
Sample   302    C.— Eock-faced    Gray    Limestone,    16"   X  20"  X  36". 
Sample    12    B.— Test   Specimen,    Basic   Open-hearth   Steel;    Tensile 

Strength Ibs  ;   Reduction  Area per  cent;  Elongation 

ins.  in inches.     Etc ,  etc ,  etc. 

13.  Commencement   of  Work. — I    [We,  the   said Company], 

undersigned,  will  commence  the  work  within  ten  days  of  the  execution 
of  the  contract,  and  will  prosecute  the  work  to  completion  within  the 
limit  of  time  hereinafter  named,  in  accordance  with  the  requirements 
and  provisions  of  the  contract. 

14.  Time  to  Complete.  —  I  [We,  the .Company]  will  require 

working  days  from  the  date  of  commencement  to  complete  the 

whole  of  the  work. 

15.  Liquidated  Damages. — I  [We,  the Company]   will  pay 

the  sum  of dollars,  liquidated  damages,  for  each  and  every 

day  that  the  contract  is  unfulfilled  after  the  time  mentioned  for  com- 
pletion in  the  contract,  the. .  .  .day  of ,  189. . 

16.  To  Keep  in  Repair. — I  [We,  the Company]  undersigned, 

also  agree  to  maintain  in  complete  repair  the  whole  of  the  works  under- 
taken in  this  contract,  and  all  roads,  ways,  streets,  etc.,  interfered  with 
or  required  to  be  rebuilt  in  the  construction  of  the  works,  for  a  period 
of  twelve  months  after  the  complete  performance  of  this  contract. 

17.  Limit,  of  Awards. — Notwithstanding   I    [We,  the Com- 
pany] have  proposed  for  several  sections  of  the  work  advertised,  it  is 
my  [our]  wish  that  the  total  work  awarded  to  me  [us]  shall  be  limited 
to dollars,  and  to  be  not  less  than dollars. 

18.  Certified  Check. — Accompanying  this  proposal  is  a  certified  check 

[accepted  bank  cheque]  for  the  sum  of dollars  [$         ],  as  called 

for  in  the  advertisement,  instructions,  or  notice  to  bidders;  and  it  is 
hereby  agreed  and  understood  that  in  case  of  refusal  or  failure  to  exe- 
cute the  contract  and  furnish  the  bond  hereto  annexed  with  the 

City  [Company  or  State],  within  ten  days  after  the  acceptance  of  this 

proposal,  the  said  check  shall   be   forfeited  to   the  said City 

[Company  or  State]  as  liquidated  damages  for  such  failure,  and  that  all 
contract  rights  acquired  by  the  acceptance  of  this  proposal  shall  be 
forfeited,  and  all  obligations  assumed  by  the  parties  in  connection  there- 


190        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  185. 

with  shall  be  released  and  mutually  rescinded;  that  if  this  proposal  be 
rejected  or  the  contract  awarded  to  another  party  the  certified  check 
shall  be  returned  to  the  undersigned  within  three  days  after  such 
rejection. 

181.   Certified  Check. — Accompanying  this  proposal  is  a  certified  check 

for dollars    [$       1,  which   shall   become   the   property  of   the 

City  [Company  or  State  J  of ,  if  in  case  this  proposal  is  ac- 
cepted by  the  said  City  [Company  or  State],  or  its  authorized  officers, 
the  undersigned  shall  fail  or  refuse  to  execute  the  contract  and  furnish 
a  bond,  according  to  the  requirements  of  the  instructions  to  bidders, 
hereto  appended,  within  the  time  provided  by  said  notice;  otherwise 
the  said  check  shall  be  returned  to  the  undersigned  within  three  days 
after  the  date  set  for  opening  the  bids. 

19.  Sureties  Offered.— In  case  this  proposal  is  accepted  by  the 

Messrs resident 

of and resident 

of are  offered  as  sureties  for  the  faithful  execu- 
tion of  the  contract. 

191.  Consent  to  Become  Surety. — If  this  proposal  be  accepted  and  the 
contract  awarded  to  me  [us]  [the Company]  I  [we,  the Com- 
pany] hereby  agree  to  furnish  approved  sureties  for  the  construction  of 
the  said  works  and  to  execute  the  contract  and  bond  therefor  in  the 
form  attached,  and  according  to  the  general  conditions  forming  a  part 

thereof,  within days  after  being  notified  so  to  do  by  the  engineer; 

and  in  the  event  of  default  or  failure  on  my  [our]  part  in  anv  par- 
ticular or,  for  any  cause  whatever,  the  said shall  be  at  liberty 

to  accept  the  next  lowest  bid  or  any  bid,  or  he  [it]  may  readvertise  for 

proposals,  and   I   [we]    hereby  agree   to   pay  to   the  said the 

difference  between  the  above  proposal  and  any  greater  sum  which  they 
[it]  may  be  obliged  to  pay  by  reason  of  such  default  or  failure,  in- 
cluding the  cost  of  any  advertisement  for  new  bids,  and  to  pay  the 

attorney  of  the  said the  cost  of  the  preparation  of  such 

contract  and  bond,  which  is  hereby  fixed  at  ten  dollars  ;  and  to 
indemnify  and  save  harmless  the  said  corporation  and  officers  from 
loss  and  damage,  cost,  charges,  and  expense,  with  which  they  may  suffer 
or  be  put  to  by  reason  of  any  such  default  or  failure. 

And  I  [we]  propose  Mr of 

and  Mr 

of as  sureties 

who  are  willing  to  become  bound  with for  the  due  performance 

of  the  said  contract. 


Signature  •) , Address  •< 

We,  the  undersigned,  do  hereby  offer  [consent]  to  become  bound  for 

the  above-named in  the  annexed 

Bond  for  the  fulfillment  of  any  contract  for  any  of  the  works  named  in 

the  annexed  specifications  which  may  be  awarded  to 

at  the  prices  herein  above  set  forth. 


Signature  of  Sureties  4 


§  185.]  BIDS  AND  BIDDERS.  191 

20.  Signatures,  Addresses,  and  Date. — Signature  of  Person,  Firm,, 
or  Corporation  making  proposal : 

, Post  Office  Address 

Dated 

The  full  names  and  residences  of  all  persons  interested  in  this  pro- 
posal [as  principals]  are  as  follows  : 


[NOTICE.— Give  Christian  names  as  well  as  surnames,  and,  in  case  of  corporations,  sign  name 
of  President,  Treasurer,  and  Manager.  The  names  of  bidders  will  be  made  public  ;  but  the 
names  of  all  parties  interested  with  them,  being  required  for  the  information  and  guidance  of 
the  Board  only,  will  not  be  made  public.] 

21.  Oath  as  to  Statements. — 

City  of 

County  of 

State  of 

The  undersigned, 


being  duly  sworn,  say  that  the  several  declarations  and  matters  stated 
in  this  proposal  are  in  all  respects  true. 

[Signed] ... 


Eesidence 

Subscribed  and  sworn  to  before  me,  this 

day  of A.D.  189 . .,  at 

,  N.  P.  or  J.  P. 

[NOTICE.  -This  affidavit  must  be  made  by  the  person  or  persons  bidding  for  the  contract ;  in, 
case  of  a  firm,  by  each  and  every  member  of  the  firm.] 

22.  Bond  for  Execution  of  Contract. — 
Know  all  Men  by  these  Presents, 

That  we are  held  and 

firmly  bound  unto  the  City  of [State  or  Company]  in  tha 

sum  of dollars,   lawful    money  of    the   United   States  of 

America,  to  be  paid  to  the  said  The  City  of [State  or  Company],. 

its  successors  and  assigns,  as  liquidated  damages,  for  which  payment, 
well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of * 

in  the  year  one  thousand  eight  hundred  and  ninety 

Whereas,  the  said 

ha made  a  proposal  to  the  City  of [State  or 

Company], bearing  date  the day  of one  thousand 

eight  hundred  and  ninety ,  and  annexed  hereto  : 

.Now  the  condition  of  this  obligation  is  such  that  if  the  said 

shall,  within  ten  days  after  the  acceptance  of  the  said  proposal,  well 
and  truly  execute  the  contract  in  accordance  with  said  proposal,  then 
this  obligation  shall  be  of  no  effect  ;  otherwise  it  shall  remain  in  full 
force  and  virtue. 

(Seal.) 
(Seal.) 

Signed  and  sealed  in  ) 
of       \ 


CHAPTER  VII. 
BIDS  AND  BIDDERS.    WORK  FOR  PRIVATE  PARTIES. 

186.  Lowest  Bidder  on  Private  Work.  Owner  may  Adopt  such  For- 
malities and  Make  such  Requirements  as  he  Pleases. — Advertisement  and 
proposal  for  private  work  are  less  formal  and  ceremonious  than  for  public 
work,  but  many  of  the  instructions,  conditions,  and  stipulations  given  herein- 
before, with  slight  modifications,  will  do  for  private  work  if  an  owner  desires 
to  have  public  competition.  It  is  more  usual  for  a  private  owner,  and  even 
companies,  to  invite  by  letter  such  contractors  and  builders  as  they  desire  to 
entertain  proposals  from,  to  make  bids.  The  expense  of  printing  blank 
forms  of  proposals,  specifications,  and  contracts  is  then  saved,  the  engineer 
or  architect  keeping  on  file  at  his  office,  and  open  for  the  inspection  of  the 
bidders,  the  specifications  and  plans  and  general  contract  form  to  be  used, 
with  his  estimate  of  the  quantities.  Sometimes  three  or  four  sun-print 
copies  are  made  to  enable  more  bidders  to  estimate  or  to  give  a  few  bidders 
more  time  to  make  their  estimates. 

The  forms  presented  heretofore  for  public  work  are  so  elaborate  and 
complete  that  the  author  deems  it  hardly  necessary  to  submit  a  new  set  of 
forms  for  private  work,  but  recommends  that  the  clauses  of  the  public  form 
be  used  in  so  far  as  the  owner  and  architect  consider  it  pertinent  and 
desirable,  such  modifications  being  made  as  seem  necessary  to  make  it  con- 
form to  private  needs  and  ends.  The  important  questions  that  arise  in 
advertising  for  public  work  and  the  award  of  the  contract,  and  all  questions 
as  to  what  the  owner  or  proprietor  may  or  may  not  require,  what  he  may 
include,  whether  or  no  he  secures  competition,  and  to  whom  or  how  he 
awards  the  contract  do  not  arise  in  private  work,  except  as  they  have  been 
made  matters  of  agreement  between  the  owner  and  the  bidders.1  The 
owner  can  adopt  his  own  methods  in  soliciting,  receiving,  and  accepting  pro- 
posals; can  make  whatever  rules,  conditions,  and  restrictions  he  sees  fit;  can 
make  any  amount  of  work  and  trouble  for  the  contractors  who  in  good  faith 
go  to  the  expense  of  preparing  estimates,  plans,  and  specifications;  and  may 
then  award  them  or  not,  as  he  pleases,  and  to  whom  he  pleases.  The  owner 
may,  it  seems,  appropriate  and  make  use  of  the  fruits  of  their  labors  with- 

1  English  cases  in  Emden's  Law  of  Building,  etc.,  p.  59,  note. 

192 


§  187.]  BIDS  AND  BIDDERS.  193 

out  any  thoughts  of  recompense,  without  a  grain  of  remorse,  and  if  it  be  a 
a  church  society,  without  sacrificing  a  pennyweight  of  piety. 

187.  In  Absence  of  Agreement  or  Pledge,  Owner  may  Exercise  his  Own 
Preference. — As  just  stated,  the  rights  of  the  lowest  bidder  on  private  work 
are  confined  to  those  created  by  agreement.  He  has  no  rights  except  such 
as  have  been  agreed  to  by  the  owner,  and  if  there  is  no  contract  expressed  or 
implied,  then  the  lowest  bidder  has  no  claims  to  the  contract,  and  the  pro- 
prietor is  under  no  obligation  to  award  it  to  him.  In  the  absence  of  a 
pledge  or  definite  understanding  between  the  parties  that  the  lowest  bidder 
shall  be  employed  to  do  the  work,  the  owner  may  exercise  his  own  judgment 
and  give  personal  preference  in  determining  whose  offer  he  shall  accept. 
He  is  not  liable  to  one  whose  offer  is  rejected  for  the  time  and  labor 
employed  by  him  in  examining  the  plans  and  specifications  to  prepare  him- 
self to  make  his  offer.1  The  owner  may  inquire  into  the  fitness,  skill, 
integrity,  and  sobriety  of  the  respective  bidders.2 

To  establish  any  claim  against  private  parties  an  agreement  to  award  the 
•contract  to  the  lowest  bidder  must  be  clearly  proven.3  The  agreement  need 
not,  it  seems,  be  in  writing,  and  its  proof  may  be  largely  established  by  the 
acts  of  the  parties  and  by  supplemental  promises.4  If  there  is  anything  in 
the  invitation  for  proposals  that  shows  an  undertaking  to  accept  the  offer 
of  the  lowest  bidder,  then  the  person  inviting  the  bids  may  be  holden  to  his 
agreement,6  and  the  testimony  of  other  bidders  may  be  admitted  to  show 
the  statements  made  to  them  by  the  architect  and  the  owner  respecting  the 
terms  under  which  the  bids  were  made.6 

The  mere  fact  that  valuable  services  are  rendered  does  not  raise  a 
liability  on  the  part  of  the  person  for  whom  they  were  executed,  even  though 
at  his  request,  if  the  circumstances  are  such  as  to  rebut  the  inference  that 
compensation  was  expected  to  be  received  or  paid.  In  the  case  of  architects 
putting  in  bids  for  the  construction  of  buildings  or  of  engineers  for  the  con- 
struction of  bridges  or  other  works,  and  furnishing  plans  and  specifications 
therefor,  unless  the  parties  calling  for  bids  expressly  agree  to  pay  for  such 
plans  and  estimates,  there  can  be  no  contract  implied,  for  there  is  nothing 
in  the  circumstances  that  shows  that  pay  was  expected  to  be  received  or 
given,  except  through  the  possible  benefit  to  the  parties  performing  the 
service  in  acceptance  of  their  bids.7 

1  Topping  t>.  Swords,  1  E.  D.  Smith,  609  and  see  Reusch  v.  Amer.  Brew.  Ass'n,  44 

9852];  see  also  Reusch  v.  Amer.  Brewing  La.  Ann.  1111,  and  supra. 

o.  (La.),  11  So.  Rep.  719.  6  Htickstein  v,  Kelly  &  Jones  (Pa.  Sup.), 

5Leskie  v.  Haseltine  (Pa.  Sup.),  25  Atl.  25  Ail.  Rep.  747. 

Rep.  886;  State  v.  Bd.  of  Ed.,  42  Ohio  St:  7  Wood's  Master  and   Servant    (2d  ed.) 

374  ;  and  see  Spencer  v.  Harding,  L.  R.  5  103;   Palmer  v.  Haverhill,  98  Mass.  487, 

C    P.  561.  in   which   the  contractor  was   tl.e   lowest 

3  Doyle  -0.  Dusenberg,  74  Mich.  79.  bidder,  but  all  bids  were  rejected,  and  it 

*  McNeil  u.    Boston    Chamber  of  Com-  was  held  he  could  not  recover  ;  Topping  v. 

merce  (Mass.),  28  N.  E.  Rep.  245  [1891].  Swords,   1  E.  D.  S.  (N.  Y.)  609;  Buck  v. 

5Roscoe's  Digest  of  Building  Cases  48;  Amidon,  41  How.  Pr.  (N.  Y.)  376  ;  Noury 

and  see  Allen  v.  Yaxall,  1  C.  &  K.  315 ;  «.  Lord,  2  Keyes  (N.  Y.)  617. 


194     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  188. 

If  a  contractor  will  protect  himself  against  the  loss  of  time  and  labor  in 
preparing  proposals  for  work,  he  should  insist  upon  an  agreement  with  the 
proprietor  that  the  lowest  bidder  shall  be  awarded  the  contract.  If  he  does 
not  do  this  he  may  expect  to  make  fruitless  bids  for  work,  and  his  time  and 
trouble  be  employed  simply  to  give  the  proprietor  a  basis  on  which  to  let 
the  work  to  some  favorite  contractor  or  builder  previously  selected. 

188.  Implied  Agreement  to  Remunerate  Bidder  for  His  Labor  or  to 
Award  Contract  to  Lowest  Bidder. — It  has  been  intimated  that  if  bidders 
had  had  no  knowledge  that  the  competition  was  not  in  good  faith,  and 
could  show  that  bids  were  invited  solely  for  the  purpose  of  making  the 
lowest  possible  contract  with  a  party  previously  chosen,  they  could 
recover  for  their  time  and  labor  spent  in  preparing  the  bids.  It  would  be 
almost  out  of  the  question  to  establish  such  proofs,  and  even  then  it  would 
be  doubtful  if  an  implied  contract  would  arise  in  favor  of  the  contractor.1 

Acceptance  of  a  bid  has  been  inferred  and  a  contract  implied  from  an 
owner's  conduct,  in  connection  with  evidence  of  a  usage  in  the  building  trade 
to  accept  the  lowest  bidder.  So  when  builders  were  present  at  the  opening 
of  the  bids  and  it  was  generally  understood  that  the  lowest  bid  was  to  be  ac- 
cepted, because  nothing  was  said  or  intimated  by  the  owner  or  his  agents 
to  the  contrary,  and,  acting  on  that  assumption,  the  unsuccessful  bidders 
dined  at  the  successful  bidder's  expense,  and  all  parties  by  their  conduct 
showed  apparently  the  same  understanding,  it  was  held  to  amount  to  an 
acceptance  of  the  bid.2  The  terms  of  the  proposal  must  be  definite  and  ex- 
pressed so  that  they  show  the  terms  of  the  contract,  and  the  subject-matter 
must  be  described.  Instructions  or  directions  to  the  bidder  to  go  on  and  do- 
the  work  have  been  held  an  acceptance  when  he  had  made  a  proposal  to  do* 
the  work  as  specified.3 

When  an  agreement  is  alleged  between  private  persons  that  the  lowest 
bidder  shall  have  the  contract,  but  it  is  not  proven,  and  the  contractor's  bid 
is  an  unsigned  memorandum,  without  reference  to  any  particular  building 
and  without  names  of  parties  or  specifications,  and  no  mutuality  of  obliga- 
tion is  shown,  the  contractor  has  no  rights.4  An  intimation  in  the  written 
acceptance  of  a  tender  that  a  contract  will  be  afterwards  prepared  does  not 
prevent  the  parties  from  becoming  bound  to  perform  the  terms  of  the 
tender  and  acceptance,  if  the  intention  of  the  parties  was  thereby  to  enter 
into  an  agreement,  and  if  the  preparation  of  the  contract  was  contemplated 
merely  for  the  purpose  of  expressing  in  formal  language  the  agreement 
already  arrived  at.5*  If,  however,  it  can  be  gathered  from  the  tender  and 

1  2  The  Engineering  Magazine  482.  5  Lewis  «.  Brass,  L.  R.  3  Q.  B.  D.  667; 

2  Pauling  v.  Pontifex,  20  Law  Times  126  but  see  Lefurgy  v.  Stewart  (Sup.),  23  N.  Y. 
[1852].  Supp  537,  where  the  price  of  stone  named 

3  Burch  v.  Hotel  Co.,  7  Mo.  App.  583.  in  bid  was  held  to  be  the  fair  and  reason- 

4  Doyle  «.  Dusenburg  (Mich.),  74  Mich.  able  value  of  the  stone,  coming  precisely 
79  [1889].  within  the  bid. 

*  See  also  Sec.    183,  supra. 


[§  188.  BIDS  AND  BIDDERS.  195 

acceptance  that  an  agreement  was  made  subject  to  the  preparation  and  ap- 
proval of  a  formal  contract,  then  there  is  no  agreement  independent  of  that 
stipulation,  and  it  is  by  the  formal  contract  that  the  parties  will  be  bound.1 

When  proposals  for  a  contract  are  in  writing  and  executed  by  the  parties, 
/.  e.y  have  been  made  and  accepted,  the  terms  of  the  contract  being  in  all 
respects  definitely  understood  and  agreed  upon,  and  either  party  refuses  to> 
execute  the  contract,  it  seems  he  is  liable  on  the  breach  of  his  agreement  for 
the  same  damages  as  would  be  recoverable  for  an  entire  refusal  to  perform 
the  contract  after  its  execution  in  writing.3  When,  however,  the  document 
was  not  executed,  accepting  the  tender  in  such  manner  as  to  be  binding  at 
law,  the  engineer  having  merely  informed  the  bidder  that  his  proposal  was 
accepted,  which  intimation  had  been  confirmed  by  the  directors  of  the  com- 
pany at  a  meeting  at  which  the  bidder  was  present,  and  the  project  was 
afterward  abandoned,  it  was  held  that  the  contractor  could  not  compel  the- 
company  to  execute  the  contract,  or  recover  from  it  the  loss  he  had  sustained 
in  preparing  to  do  the  work.3 

Plans  and  specifications  referred  to  in  a  call  for  bids  are  treated  as  incor- 
porated into  and  forming  a  part  of  the  contract  as  well  as  other  matter 
referred  to  in  the  call.4 

A  proposal  to  receive  bids  for  certain  things  to  be  sold,  specifying  no> 
limitation  or  qualification,  constitutes  a  contract  to  include  the  whole  of 
such  thing.5  This  case  arose  out  of  the  sale  of  stone  contained  in  an  old 
bridge,  and  would  apply  with  equal  force  to  the  sale  of  materials  of  an  old 
building.f 

1  Winn  v.  Bull,  L.  R  7  Ch.  D.  29  [1877] ;      &  Twelle  75  [1848]. 

Com'rs  v.  Fetch,  10  Ex.  611.  4  Woods  Law  of  Master  and  Servant  (2d 

2  Pratt  v.  Hudson  Hirer  R.  Co.,  21  N.  Y.      ed.)  164;  citing  Windhorst  v.  Deeley,  2  C. 
305    [I860] ;    and    see    Highland    Co.    v.      B.  253. 

Rhoades,  26  Ohio  St.  411.  6  Verm  v.  Commissioners,  32  Beav.  490 

3  Jackson  u  The  N.  W.  Ry.  Co.,  1  Hall      [1863]. 

f  Sees.  189-199  are  omitted. 


PART  III. 

ENGINEER'S  AND  ARCHITECTS 
EMPLOYMENT. 


CHAPTER   VIII. 
ENGAGEMENT   OR  EMPLOYMENT  OF  ENGINEER  OR  ARCHITECT. 

PERFORMANCE    OF   SERVICE,    TERM   OF   SERVICE,    DISMISSAL   OR  DISCHARGE, 

AND    EXTRA  WORK. 

200.  Contract  of  Employment. — A  contract  of  employment  must  contain 
all  the  essentials  of  a  contract,  just  the  same  as  all  other  contracts.     It  can 
not  be  terminated,  except  for  good  cause,  until  the  term  of  service  has 
expired.     If  the  employment  be  for  a  year,  a  month,  or  a  day,  it  cannot  be 
terminated  before  the  year,  month,  or  day  has  expired,  without  sufficient 
reason  for  the  act.     If  no  term  of  service  has  been  agreed  upon,  the  employee 
may  be  discharged  at  any  time;  or  even  ejected  by  force,  if  necessary.1 

201.  Term   of  Service. — If   the  service  is  to  continue  so  long  as  the 
employer  is  satisfied,  he  may  dismiss  the  employee  at  any  time  and  without 
giving  any  reason,2  and  a  contract  for  a  year,  unless  sooner  terminated,  does 
not  mean  that  either  party  can  terminate  the  service  without  just  cause.3 

A  contract  to  give  an  employee  steady  and  permanent  employment  is  not 
void  as  against  public  policy,  in  the  absence  of  any  showing  that  the 
employee  is  not  able  or  competent  to  do  such  work  as  the  employer  may  be 
in  a  position  to  give  him.4  So  if  an  employer,  in  settling  with  an  employee 
for  injures,  agree  to  employ  him  at  a  certain  salary  for  life,  or  during  his 
ability  and  disposition  to  perform  the  duties  required,  he  will  be  liable  for 
prospective  damages  if  he  discharge  the  employee.5 

1  De  Briar  ®.  Minturn,  1  Cal.  450  ;  Niag-  111.  App.  226;  Daveny  v.  Shattuck,  9  Daly 

ara  F.  Ins.  Co.  «j.  Whittaker,  21  Wis.  329;  (N.  Y.)  66. 

Donaldson  v.   Williams,  1  Cr  &  M.  345;  3De  Briar  v.  Minturn,  supra;  Niagara 

Mackay  v.  Ford,  29  L.  J.  Ex.  404.  F.  Ins.  Co.  v.  Whittaker,  supra. 

2 Spring  v.  Ansonia  Clock  Co.,    24  Hun  4Penna.  R   Co.  v.  Dolan  (Ind.  App.),  32 

(N.    Y.)  175;   Glyn  v.   Miner,   27  N.  Y.  N.  E.  Rep.  802. 

Supp.  341;  Evans  v.  Bennett,  7  Wis.  404;  5  Brighton  t.   Lake  Shore  &  M.  S.  Ry. 

Alexis  Stoneware  Mfg.  Co.  v.  Young,  59  Co.  (Mich.),  61  N.W.  Rep.  550;  70  N.  W. 

196 


§201.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  197 

A  contract  of  employment  for  an  indefinite  period  may  be  terminated  any 
time  by  either  party,1  and  one  for  not  more  than  six  months,  or  not  to  exceed 
six  months,  is  for  an  indefinite  period.* 

An  agreement  to  employ  a  person  permanently  is  nothing  more  than  em- 
ployment to  continue  indefinitely,  or  until  one  or  the  other  of  the  parties,  for 
some  good  reason,  desires  to  sever  the  relation  of  employer  and  employee.3 
An  agreement  "  to  come  to  the  permanent  service  of  a  company  "  would 
probably  receive  the  same  construction.  A  contract  of  employment  at  cer- 
tain wages,  so  long  as  the  works  of  the  employer  are  kept  running  or  until 
the  employee  shall  see  fit  to  quit,  is  not  void  for  uncertainty,4 

The  compromise  of  a  disputed  claim  for  personal  injuries  to  an  employee 
is  a  sufficient  consideration  for  a  railroad  company's  agreement  to  retain 
such  employee  at  a  specified  salary  during  his  natural  life,  or  his  ability  to 
do  the  work,  though  the  continuance  of  the  service  be  optional  with  the 
employee.5 

If  the  terms  of  employment  adopt  a  certain  length  of  time,  as  a  month, 
or  a  year,  for  the  estimation  of  wages,  it  raises  a  strong  presumption  that  the 
term  of  service  was  for  the  period  mentioned.  Therefore  a  contract  at 

$ per  year  is  presumably  for  a  year;  at  a  monthly  rate,  for  a  month; 6  but 

the  presumption  is  not  conclusive  in  the  absence  of  other  evidence.  It  alone, 
will  not  fix  the  period.7  Such  a  contract  is  incomplete  and  ambiguous,  and 
parol  evidence  of  the  surrounding  circumstances,  the  situation  of  the  parties 
at  the  time  the  contract  was  made,  etc.,  may  be  admitted  to  assist  the  court 
in  interpreting  its  meaning.*  Contracts  for  a  year's  employment,  to  begin 
at  some  day  in  the  future,  which  cannot  be  completed  within  a  year  are 
void  and  worthless  unless  they  are  in  writing,  not  being  made  in  accord- 
ance with  the  requirements  of  the  Statute  of  Frauds,  f 

A  contract  of  employment,  at  a  salary  per  year  and  a  certain  share  in  the 
net  profits  of  a  firm,  does  not  make  the  engineer  a  partner  in  the  firm.8 

Under  an  employment  for  an  indefinite  period  at  a  specified  sum  per 
month,  which  service  continued  for  a  number  of  years  without  interruption, 
the  contract  is  continuous,  and  the  Statute  of  Limitations  does  not  begin  to 
run  until  service  ends.9  The  terms  of  a  yearly  contract  for  services  will  be 

Rep.  432;  Penna.  R.  Co.  v.  Dolan,  supra;  (Mich.),  71  N.  W.  Rep.  148  [1897]. 

and  nee  Pierce  v.  Term.    C.  I.  &  R.  Co.  'Kellogg  v.  Citizens'  Ins.  Co.  (Wis.),  69 

(Aln.),  19  So.  Rep.  22.  N.  W.  Rep.  362;  14  Amer.  &  Eng.  Ency. 

1  Greenburg  9.  Early,  23  N.  Y.  Supp.  Law  762. 

1009.  714  Amer.   &  Eng.    Ency.    Law    762; 

2 Campbell  v.  Jimenes,  27  N.  Y.  Supp.  Fullers.  Peninsular,   etc.,  Wks.   (Mich.), 

351.  69  N.  W.   Rep.  492;   Haney  9.  Caldwell. 

•Lord  9.  Goldberg  (Cal.),  22  Pac.  Rep.  35  Ark.  156;  Martin   v.  N.    Y.  Life  Ins. 

1126:   Caring  v.    Carr  (Mass.),   46  N.   E.  Co.  (App.),  42  N.  E.  Rep.  416. 

Rep   117.  8  Porter  v.  Curtis  (Iowa),  65  N.  W.  Rep. 

4  Carter  White  Ld.  Co.  v.  Kinlin  (Neb.),  824. 

66  N.  W.  Rep.  536.  9Ah  How  9.   Furth  (Wash.),  43  Pac. 

5  Stearns  9.  Lake  Shore  &  M.  S.  Ry.  Co.       Rep.  639. 

*See  Sees.  124-125,  Parol  Evidence,  supra. 
\  See  Statute  of  Frauds,  Sec.  105,  supra. 


198    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  202. 

presumed  to  continue  from  year  to  year,  so  long  as  the  employment  lasts, 
unless  the  contrary  is  shown ;  and  in  the  absence  of  sufficient  evidence  to 
show  a  change  in  the  terms  of  employment,  proof  of  the  original  contract 
will  limit  the  right  of  recovery  to  the  yearly  salary  at  the  original  rate.1 

202.  Dismissal  or  Discharge  of  an  Employee. — Mr.  Smith,  in  his  work  on 
Master  and  Servant,  has  named  the  following  causes  which  may  justify  the 
•discharge  of  a  servant  before  his  term  of.  service  has  expired  :  (1)  Willful 
disobedience  of  any  lawful  order  of  the  master.    (2)  Gross  moral  misconduct, 
whether  pecuniary  or  otherwise.     (3)  Habitual  negligence  in  business  or 
conduct  calculated  seriously  to  injure  the  master's  business.     (4)  Incom- 
petence or  permanent  disability.     For  convenience  the  author  will  adopt 
the  same  order  of  treatment. 

203.  Willful  Disobedience  of  Any  Lawful  Order  of  the  Employer.— It  must 
not  be  taken  that  every  breach  of  discipline  or  discourtesy  can  be  made  an 
excuse  for  discharging  an  employee.     If  the  employer  is  unreasonable  in 
his  orders  or  commands,  the  employee  is  not  bound  to  obey  them,  but  he 
must  be  sure  that  they  are  unreasonable.     A  refusal  to  work  at  one's  trade 
on  Sunday,8  or  to  work  at  unseasonable  hours,3  when  the  circumstances  or 
nature  of  the  work  does  not  make  it  necessary  or  reasonable  to  so  work;  or 
disobedience  of  orders  in  matters  not  material  to  the  employment,4  or  that 
involves  no  serious  consequences  and  which  is  not  willful,  in  the  sense  of 
being   perverse,  insubordinate,  or   unreasonable,  which  question   is   for  a 
jury;5  or  slight  discourtesies,  hasty  words,  and  occasional  exhibitions  of 
irritation,  or  even  ill-temper,  especially  where  there  are  many  petty  causes 
of  annoyance  and  irritation  in  the  business,6  or  where  the  employer  exhibits 
impatience  and  irritation  toward  the  employee  without  just  cause,7  is  not 
sufficient  cause  for  discharging  the  employee. 

If  the  servant  is  disrespectful  in  his  conduct,8  or  his  deportment  and 
disposition  are  such  as  to  injure  the  custom  and  business  of  the  employer, 
or  he  is  insubordinate  and  ignores  his  employer's  feelings  and  proper  au- 
thority,8 or  he  uses  obscene  and  improper  language  while  attending  to  his 
duties,  especially  when  the  owner  does  not  use  such  language,10  or  his  con- 
duct towards  agents  sent  by  his  employer  to  inspect  his  work  is  rude  and 
reprehensible,11  the  employer  will  be  justified  in  discharging  the  employee. 

It  is  not  a  breach  of  a  traveling  salesman's  contract  for  him  to  go  to  a 


1  Meavs  v.  O'Donoghue,  58  111.  App.  345.  7  Forsyth  v.  Hastings,  27  Vt.  646  [1855]; 

*  Jacquot-0.  Bourra,  7  "Dowl.  348.  Weaver  ®.   Halsey,   1  111.    App.    558;    14 

3  Koplitz  v.  Powell,  56  Wis.  671.  Am.  &  Eng.  Ency.  Law  789. 

4  Hamilton  v.    Lowe   (Ind.),  43   N.    E.  *  Railey  v.  Lanalian,  34  La.  Ann.  426. 
Rep.  873.  9  Leatherby  v.  Odell,  7  Fed.  Rep.  642. 

5  Cases    collected,    14    Amer.    &    Eng.  10  Weaver  v.  Halsey,  1  111.  App.  558;  14 
Ency.    Law    789  ;    see    Pape    t>.    Lathrop  Am.  &  Eng.  Ency.  Luw  789. 

<Ind.  App.),  46  N.  E.  Rep.  154.  n  Lalande  v.  Aldrich  (La.),  6  So.  Rep. 

6  Leatherby  v.   Odell  (N.   C.),   7  Fed.  28  [1889]. 
Hep.  042. 


§  204.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  199 

place  off  his  route  to  spend  Sunday  with  his  family,  where  it  does  not 
seriously  interfere  with  his  compliance  with  his  contract.1 

When  the  employer  claims  that  the  employee's  misconduct  has  caused  a 
diminution  in  his  business,  it  may  be  shown  that  the  decrease  was  caused 
in  whole  or  in  part  by  rumors  affecting  the  employer's  character  and  con- 
duct.2 The  refusal  of  a  traveling  salesman  to  obey  the  orders  of  his 
employer  requiring  him  to  report  by  letter  daily  has  been  held  sufficient 
excuse  for  his  discharge.3  It  seems  a  city  salesman  may  properly  refuse  to 
go  into  another  state  to  sell  goods,  nothing  having  been  said  at  the  time  of 
his  employment  as  to  the  place  he  should  work.4 

204.  Gross  Moral  Misconduct,  Pecuniary  or  Otherwise. — In  any  position 
it  is  probable  that  a  criminal  act  would  be  sufficient  to  warrant  an  employer 
in  getting  rid  of  a  servant,  and  without  paying  him  his  wages,  too.5  Thiev- 
ing, stealing,  or  embezzling  the  master's  property  has  frequently  been  held 
a  good  cause  for  immediate  dismissal,6  without  notice,  even  though  notice 
was  required  by  the  contract  of  employment,7  and  without  paying  him  any 
wages; 8  but  in  the  absence  of  deception,  concealment  of  facts,  or  fraud,  by 
which  the  employee  has  induced  the  employer  to  hire  him,  it  seems  that 
dishonest  and  fraudulent  conduct  with  a  former  employer  will  not  be  a 
ground  for  dismissal,9  although  the  discovery  that  the  employee  is  a 
drunkard  will  warrant  the  master  in  repudiating  a  contract  of  employment 
before  the  term  of  service  has  begun.10  Robbing  a  third  party,11  fraudulent 
conduct  towards  the  employer,18  taking  bribes  from  subordinates  to  obtain 
favors/3  or  accepting  gratuities  for  conniving  at  a  breach  of  regulations 
which  he  was  to  enforce; 14  or  unchaste  and  licentious  conduct  in  a  domes- 
tic servant,  or  in  connection  with  the  duties  of  one's  service  in  any 
capacity,16  each  and  all  have  been  held  sufficient  cause  for  dismissal. 

The  question  whether  a  servant  was  rightfully  discharged  must  depend 
upon  the  nature  of  the  services  which  he  was  engaged  to  perform,  and  his 
dismissal  must  be  in  some  way  connected  with  the  duties  of  that  service.18 
Drunkenness  has  been  held  a  justifiable  cause  for  discharge,17  if  it  is  a 
habit,18  but  not  unless  the  duties  of  the  service  are  affected  thereby.19  Tat- 

1  Milligan  v.  Sligh  Fur.  Co.  (Mich.),  70  »  Libhart  t>.  Woods,  1  Watts  &  S.  265; 
N.  W.  Rep.  133.  Trotman  v.  Dunn,  4  Camp.  211. 

2  Vinson  ®.  Kelly  (Ga.),  25  S.  E.  Rep.  "Singer®.  McCormick,   4  Watts  &  S. 
£30.  265-266;  Hortou  v.  McMurtry,  5  Hurst  & 

3  McCain  v.  Desnoyers,  2  Mo.  App.  Rep.  N.  667. 

896.  .  13  Engel  v.  Schooherr,  12  Daly  (N.  Y.) 

4  Berriman  v.  Marvin,  59  111.  App.  440.  417. 

5  14  Amer.  &  Eug.  Ency.  Law  783.  u  Bogg  v.  Pearse,  10  C.  B.  534. 

6  Brown  v.   Croft.   6  C.  &  P.  16,  note;  15  Smith's  Master  and  Servant  143,  and 
Libhart  v.  Wood,  1  Watts  &  S.  265.  cases  cited;  Drayton  v.  Reid,  5  Daly  (N. 

7  Smith's  Master  and  Servant  143.  Y.)  442. 

8  Cunningham  v.  Foublanque,  6  C.  &  18  14  Amer.  &  Eng.  Ency.  Law  789. 
P.  49.  17  Smith's  Master  and  Servant  144. 

9  Andrews  v.  Garstin,  31  L.  J.  C.  P.  15.  18  Cases  in  14  Amer.  &  Eng.  Ency.  Law 

10  Nolan  v.  Thompson,  11  Daly  (N.  Y.)      788. 

314;  Jo  inson  v.  Gorman,  30  Ga.  612.  19  14  Ainer.  &  Eng.  Ency.  Law  788. 


200     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  205, 

tling  or  disclosing  to  others  the  employer's  business  and  secrets/  or  disclos- 
ing the  accounts  of  one  company  to  another, a  or  revealing  professional 
secrets  of  the  employer,3  or  the  act  of  advising  or  inducing  co-employees 
or  apprentices  to  quit  the  master's  service,4  or  the  act  of  plundering  or 
poaching  on  the  premises  on  which  a  workman  is  at  work,6  is,  each  and  any, 
a  good  reason  for  the  employer  to  discharge  the  employee. 

Claiming  to  be  a  partner  and  thus  denying  that  one  is  an  employee,8 
or  seeking  to  secure  the  patronage  of  the  employer's  clients  or  patrons  to- 
himself,7  or  entering  into  negotiations  for  carrying  on  the  same  business  as 
the  employer  is  engaged  in,8  will  justify  the  employer  in  terminating  the 
employment  forthwith.  •>  The  same  was  held  when  the  employee  engaged 
in  a  business  or  calling  the  tendency  of  which  was  to  injure  the  employer's 
business,9  and  when  he  dealt  with  certain  merchants  or  tradesmen  named 
by  his  employer.10 

The  right  to  discharge  an  employee,  if  at  any  time  the  employer  "  feel 
satisfied  that  the  employee  is  incompetent/'  must  be  exercised  in  good 
faith.11  His  dissatisfaction  must  be  genuine."  If  the  employer  admits  the 
contract  of  employment,  the  burden  is  on  him  to  show  cause  for  discharge.1* 

An  employee  may  have  a  right  of  action  against  a  third  person  wha 
maliciously  procures  his  discharge,  though  the  employer  violates  no  legal 
duty  in  discharging  him.14  Railway  companies,  combining  for  the  purpose 
of  preventing  employment  by  each  other  of  discharged  employees,  are  liable 
to  a  discharged  employee  who  is  prevented  by  them  from  procuring  em- 
ployment. 15  A  "  boycott "  by  the  members  of  trades  unions  or  assemblies  is 
unlawful,  and  may  be  enjoined  by  a  court  of  equity.16 

205.  Habitual  Negligence,17  or  Conduct  Calculated  to  Injure  Master's 
Business.17 — This  heading  opens  the  broad  question  of  "What  is  attention 
to  business?"  which  cannot  be  answered  generally,  but  must  depend  upon 
the  circumstances  of  each  case.  It  has  been  held  that  the  absence  of  an 
overseer  of  a  plantation  for  one  day  (presumably  without  good  excuse),  war- 

1  Beeston  v.  Caller,  2  C.  &  P.  607;  Dray-  12  Crawford  v.  Mail  and  Express  Pub. 
ten  v.  Reid,  5  Daly  (N.  Y.)  442;  Greene  Co.  (Sup.),  41   N.  Y.  Supp.   325;   but  see 
Brooks  (Cal.),  22  Pac    Rep.  849;  Fillieul  Alexis  S.  Mfg.  Co.  v.  Young,  59  111.  App. 
9.  Armstrong,  7  A.  &  E.  557.  226. 

2  The  East  Anglian  Ry.  Co.  «.  Lythgoe,  13  Mulligan  9.  Sligh  Fur.  Co.  (Mich.).  70 
2  L.  M.  &  P.  221;  and  see  Davenport  v.  N.  W.  Rep.  133  [1897]      As  to  meaning  of 
Hulrae  (Super.),  32  K  Y.  Supp  803.  "incompatibility"  and  "  unsuitableness," 

:1  Mercer  v.  Whall,  5  Q.  B.  447.  see  Gray  9.  Sheppard  (N.  Y.  App.),  41  N. 

4  Turner  v  Robinson,  5  B.  &  Ad.  789.  E.  Rep.  500. 

6  Read  v.  Dunsmore,  9  C.  &  P.  588.  "  Dannerberg  v.  Ashley,  10  Ohio   Cir. 
•  Amor  9.  Fearon,  9  A.  &  E.  548.  Ct.  Rep.  558. 

7  Mercer  9.  Whall,  5  Q  B.  447  15  Mattison  9.  Lake  Shore  &  M.  S.  Ry. 
s  Hobson  v.  Cowley,  27  L.  J.  Exc.  205.  Co.  (Com.  PI.),  2  Ohio  N.  P.  276. 

9  Many  cases,  14  Arner.  &  Eng.  Ency,  16  Oxley   Stave   Co.    9.    Coopers'    Inter- 
Law  789.                                                                 national  Union  of  North  America  (C.  C.), 

10  14  Amer.  &  Eng.  Ency.  Law  790.  72  Fed.  Rep.  695. 

11  Smith  v.  Robson  (N.  Y.  App.),  42  N.          "  Newmnn  v.  Reagan,  63  Ga.  755;  Callo 
E.  Rep.  677.  9.  Brouncker,  4  C.  &  P.  518. 


§  206.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  201 

ranted  his  discharge/  and  surely  the  position  of  an  engineer  as  superin- 
tendent or  chief  inspector  of  large  works  would  be  regarded  of  equal  im- 
portance.3 The  absence  of  a  teacher  for  two  days  after  vacation,  no  injury 
having  been  shown  to  result,  will  not  justify  his  discharge.3 

Illness  for  considerable  time  will  release  the  employer  from  his  con- 
tract of  employment.4  The  sickness  of  a  timekeeper  for  fifteen  days,  to- 
gether with  the  fact  that  he  did  not  keep  the  employees'  time  correctly,  is 
sufficient  cause  for  dismissal;5  and  imprisonment  for  two  weeks  was  held 
sufficient  cause.8  Under  a  contract  of  employment  for  a  term  of  ten  years 
it  was  held  that  the  employee  might  recover  his  wages  for  a  period  of  six 
months,  during  which  he  was  too  ill  to  attend  to  his  duties,  the  company 
not  having  rescinded  the  contract,  but  having  allowed  it  to  remain  in  force- 
and  the  employee  to  return  to  his  work  under  it  when  he  was  sufficiently 
recovered.7  The  same  was  held  of  a  doorkeeper  to  the  finance  department, 
of  New  York  City,  who  was  absent  two  years.8  A  public  officer  on  a  fixed 
salary  cannot  be  deprived  thereof  when  his  absence  on  account  of  sickness 
has  been  permitted.  Long  continued  sickness  may  be  a  cause  for  removal 
from  office,  but  until  removed  he  is  entitled  to  his  salary.9 

When  a  person  is  employed  to  perform  certain  duties  it  is  presumed 
that  he  will  attend  to  them  personally.  If  the  servant  delegates  such  duties 
to  another  without  notice  to  his  employer  it  will  justify  his  discharge.10 
Such  contracts  include  those  for  the  services  of  engineers,  architects,  law- 
yers, physicians,  playwrights,  opera-singers,  and  even  domestic  servants. 
The  contracts  cannot  be  transferred  nor  assigned,  nor  can  the  services  be- 
delegated.11  If  a  servant  becomes  disabled  from  performing  the  duties  of 
his  employment,  the  contract  is  thereby  dissolved,  and  an  agreement  to 
pay  the  servant  his  wages  if  he  would  resign  his  employment  is  without 
consideration.12 

206.  Incompetence  or  Incapacity. — As  described  in  previous  sections, 
an  employee  is  responsible  for  any  misrepresentations  as  to  his  capacity,  ex- 
perience, skill,  or  training ;  and  having  made  such  representations,  either 
expressed  or  implied,  he  is  responsible  for  any  damages  due  to  the  want  of 
such  skill  and  capacity.  So,  too,  such  misrepresentations  may  be  a  good 
ground  for  dismissing  an  employee.13  If  the  employee  be  unskillful  or  in- 
competent in  the  duties  or  work  he  has  undertaken  to  perform,  then  he  has, 

1  Ford  v.  Danks,  16  La.  Ann.  119;  and         8  Devlin  v.  Mayor,  41  Hun  (N.  Y.)  281. 
see  Shaver  v.  Ingraham,  58  Mich.  649;  and          9  O'Leary  v.  Bd.  of  Ed.,  93  N.  Y.  541. 
Drayton  v.  Reid,  5  Daly  (NY.)  442;  Shoe-          10  Stauton  «.  Bell,  2  Hawks  (N.  C.)  145; 

maker  v  Acker  (Gal.),  48  Pac.  Rep.  62.  Wise  v.  Wilson,  1  C.  &  K.  662. 

See  Wehrli  v.  Rehwoldt,  107  111.  60.  »  14  Amer.    &    Eng.   Ency.   Law  787;. 

Filleul  v.  Armstrong,  7  A.  &  E.  557.  Smith's  Master  and  Servant  152. 

14  Amer.  &  Eng.  Ency.  Law  790.  12  Prior  «.  Flagler  (Com.  PI.),  34  N.  Y. 

Miller  v.  Gidier.  36  La.  Ann.  201.  Supp.  152. 

Leopold  v.  Salkey,  89  Ills.  413.  13  Austee  v.  Ober,  26  Mo.  App.  665. 

Cuckson  v.  Stones,  28  L.  J.  Q.  B.  25. 


202     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  207. 

not  fulfilled  his  contract,  and  the  employer  will  be  justified  in  terminating 
the  contract.1  Yet  unskillfulness  on  the  part  of  an  employee  does  not  pre- 
vent him  from  recovering  the  real  value  of  his  services.2 

The  inability  or  incapacity  of  an  engineer  to  conduct  operations  or  carry 
the  work  imposed  upon  him  may  not  arise  alone  from  his  want  of  skill  or 
training,  but  from  the  quantity  of  the  work  or  the  burdens  imposed  upon 
him.  It  was  therefore  held  that  when  an  engineer  of  a  single  bureau  of  the 
department  of  public  works  of  a  great  city  had  allowed  himself  to  be 
loaded  with  all  the  work  of  the  department,  and  in  the  performance  of  the 
added  duties  he  developed  a  want  of  skill  or  ability  as  an  engineer  or  an 
insufficient  and  slack  control,  it  was  sufficient  ground  for  removing  him 
from  office;  that  while  he  might  lawfully  have  declined  the  added  duties  im- 
posed by  the  action  of  the  chief  of  the  department,  yet  having  assented  and 
assumed  them,  he  could  be  held  responsible  for  their  proper  performance.3 

207.  Condonation  of  Employee's  Offense. — If  an  employee  has  been  absent 
from  his  duties  or  work,  or  if  he  has  been  guilty  of  some  breach  of  his  con- 
tract,4 or  he  has  indulged  in  hasty  words  or  exhibitions  of  temper,  and  the 
employer  has  retained  the  employee  with  knowledge  of  the  facts,  he  cannot 
thereafter  complain  nor  make  that  instance  a  ground  for  his  subsequent 
discharge.5     If  the  employee  has  been  guilty  of  tortious  or  negligent  acts,  it 
seems  that  may  warrant  a  subsequent  discharge.6     Retention  of  service  and 
payment  of  wages  without  protest,  after  knowledge  of  defective  work  done 
by  an  employee,  is  prima  facie  evidence  of   a  waiver  of  the  right  to  dis- 
charge him,  or  deduct  from  his  wages  on  that  account.7     It  seems  that  the 
keeping  of  an  employee  whose  skill  and  work  was  not  equal  to  that  con- 
tracted for  until  the  busy  season  was  over,  it  being  very  difficult  to  secure  a 
competent  substitute,  is  not  of  itself  a  condonation.     What  amounts  to  a  con- 
donation of  a  servant's  offence  is  a  question  for  a  jury.8     The  keeping  of  an 
•employee  after  his  work  has  become  unsatisfactory  is  not  a  condonation  of 
the  acts  causing  dissatisfaction,  when  the  contract  provides  that  the  employee 
may  be  discharged  whenever  his  work  proves  unsatisfactory.9     A  person 
cannot,  by  a  decree  of  court,  be  compelled  to  retain  another  in  his  service.10 

208.  What  Is  a  Discharge. — What  amounts  to  a  discharge  of  an  em- 
ployee is  not  always  clear.     It  has  been  held  that  a  request  or  demand  for 
the  employee's  resignation  amounts  to  a  discharge. ll     A  letter  to  a  railroad 

1  Leatherberry  v.   Odell,    7  Fed.    Rep.  7  Tickler  v.  Andrae  Mfg.  Co.  (Wis.),  71 

641;  flarmer  v.  Cornelius,  28  L.  J.  C.  P.  N.  W.  Rep.  292. 

85;  Jenkins  v.  Betham,  15  C.  B.  188.  8  McMurray  «.  Boyd  (Ark.),  25  S.  W. 

5  Cases,  14  Amer.   &  Eng.  Ency.  Law  Rep.  505;  Leatherberry  v.  Odell  (N.  C.),  7 
781.  Fed.  Rep.  642. 

3  People    v.   Campbell,    82    N.    Y.    247  9  Alexis  St.  Mfg.  Co.  v.  Young,  59  111. 
[1880].  App.  226. 

4  14  Amer.  &  Eng.  Ency.  Law  778-791.  10  Reid   Ice  Cream  Co.  v.  Stephens,  62 

6  Hamilton  v.  Love  (Ind.),  43  N.  E.  Rep.  111.  App.  334. 

873.  n  Jones  v.  Graham,  etc.,  Co.,  51  Mich. 

6  Stoddard  «.  Treadwell,  26  Cal.  294.  539. 


§209.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  203 

superintendent  informing  him  that  another  had  been  instructed  to  superin* 
tend  everything,  and  adding,  "I  presume  you  will  prefer  to  retire  by  means 
of  resignation.  It  is  hereby  understood  that  the  same  is  accepted,  and  you 
will  please  telegraph  me  of  its  transmission.  Please  confer  with  M.,  the 
V.  P.,  in  turning  over  the  papers  in  the  superintendent's  office,"  was  held  to 
operate  as  a  positive  and  preemptory  dismissal;  and  a  letter  of  resignation 
written  in  obedience  or  at  the  suggestion  of  the  employer  does  not  change 
its  character  or  construction  or  show  that  he  voluntarily  resigned,  nor  can 
such  a  letter  be  construed  as  an  acquiescence  in  his  dismissal.1  The  dismissal 
or  discharge  must  be  in  such  terms  that  there  is  no  doubt  in  the  mind  of 
the  employee  as  to  the  intention  of  the  employer  to  terminate  the  service. 
When  a  letter  asking  an  employee  "to  turn  over  his  desk  and  papers  to 
another  employee,"  and  information  next  day,  when  he  offered  to  go  to 
work,  that  there  was  nothing  for  him  to  do;  and  a  subsequent  offer  of  other 
and  different  work  than  was  originally  agreed  upon;  it  was  held  a  question 
for  the  jury  to  decide  whether  the  employee  had  been  discharged.2 

An  employee,  in  answer  to  a  letter  of  his  employer  discharging  him,  first 
wrote  that  he  accepted  "  your  ultimatum,"  and  subsequently  wrote  that  he 
did  not  thereby  mean  to  release  his  employer  from  liability  for  salary  due  for 
the  unexpired  term  of  his  employment,  but  to  merely  concede  the  right  of 
his  employer  to  discharge  him;  it  was  held  that  the  letters  were  insufficient 
to  release  the  employer  from  an  existing  entire  contract  of  employment.8 

It  seems  that  an  editor  performing  such  services  as  his  employer  directs 
cannot  complain  because  a  part  of  the  paper  is  taken  from  his  control; 4  and 
that  a  discharged  employee  who  is  idle  may  be  recalled  to  do  work  which  he 
undertook  under  his  contract  of  service,  and  without  restoring  him  to  his 
former  office  or  position.5  He  need  not  return  at  reduced  wages,  and  his 
refusal  to  accept  less  pay  than  that  agreed  upon  in  the  contract  will  not  prej- 
udice his  right  to  recover,  nor  reduce  the  amount  of  his  recovery.5 

209.  Duty  of  Discharged  Employee  to  Seek  Other  Employment— When 
an  employee  has  been  discharged  the  law  imposes  upon  him  the  duty  of 
making  reasonable  efforts  to  secure  other  employment;  but  extraordinary 
diligence  is  not  required.5  It  is  incumbent  upon  the  employer  to  show  that 
the  employee  could  have  obtained  other  employment  or  that  it.  was  offered  to 
him;  and  then  it  is  necessary  for  the  employee  to  excuse  himself  for  not 
accepting,  by  some  just  and  proper  reason  for  refusing  the  offer.  If  he  does 
not,  then  the  amount  that  he  did  earn  or  might  have  earned  between  his 
discharge  and  the  commencement  of  his  suit  will  be  deducted  from  the  wages 
or  damages  recovered.6 

1  The  Cumberland  &  Pa.  K.  R.  Co.  v.          4  Lathrop  v.  Visitor  Ptg.  Co.  (R.  I.),  30 
Slack,  45  Md.  161  [1876];  and  see  Pinet  v.       Atl.  Rep.  964. 

Montague  (Mich.),  61  N.  W.  Rep.  876.  5  14  Amer.  &  Eug.  Ency.  Law  795-7. 

2  Klaw  v.  Enrich.  31  N.  Y.  Supp.  773.  6  Rosen  i  erger  v.  Pacific  Coast  Ry.  Co. 

3  Martin  v.  New  York  Life  Ins.  Co.  (N.  (Cal.),  43  Pac.  Rep.  963;  14  Amer.  &  Eng. 
Y.  App.),  42  N.  E.  Rep.  416.  Ency.  Law  795-7.                                           • 


204     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.      [§  209. 

A  person  who  has  been  wrongfully  discharged  is  bound  only  to  seek  like 
employment  to  prevent  damages  being  reduced  by  his  remaining  idle.1  The 
service  offered  must  be  of  equal  grade,  and  the  fact  that  the  pay  is  greater  in 
the  service  that  offers  itself  makes  no  difference.2  He  need  not  visit  other 
communities  in  quest  for  work,8  and  if  he  does,  it  seems  he  is  not  entitled  to 
recover  his  expenses  in  seeking  other  employment,  though  his  earnings  in 
such  other  employment  are  charged  in  reduction  of  his  damage.3  If  he  has 
failed  to  secure  work  and  devotes  himself  in  the  meantime  to  work  of  his 
own,  its  value  cannot  be  deducted  from  what  is  due  him  under  his  claim.4  In 
an  action  for  damages  for  wrongful  discharge,  the  employee  need  show  only 
readiness  and  willingness  to  render  the  services,  and  an  honest  effort  to 
obtain  other  employment,  an  actual  offer  to  perform  being  unnecessary; 5  he 
need  not  allege  inability  to  earn  anything  during  such  time  as  he  was  idle.* 

A  servant  wrongfully  discharged  has  his  option  to  sue  at  once  for  his 
damages,  or  to  wait  till  the  expiration  of  his  term  of  employment;  and  the 
damages  recoverable  are  the  amount  of  his  wages,  at  the  contract  price,  to 
the  date  of  the  trial,  where  that  takes  place  before  the  expiration  of  the 
term,  less  whatever  sum  it  is  shown  that  he  has  earned,  or  might  reasonably 
have  earned,  since  his  discharge.7  He  is  entitled  to  recover  wages  up  to  the 
time  of  the  trial  of  the  action  only,  and  not  to  the  time  the  contract  of  em- 
ployment would  have  expired,8  because  the  amount  of  wages  agreed  to  be 
paid  for  the  unexpired  term  is  prima  facie  the  measure  of  damages.* 
When  a  person  who  had  contracted  to  do  certain  work  for  $1500  was  dis- 
charged before  he  had  completed  the  work,  and  after  he  had  been  paid  $500, 
a  verdict  for  $2250,  in  an  action  by  him  for  breach  of  contract,  is  excessive.1* 

If  the  compensation  of  the  employee  was  not  agreed  upon,  he  will  be  • 
entitled  to  a  reasonable  sum  for  the  services  performed.11  If  the  employment 
be  at  a  stated  price  for  a  longer  term  than  is  allowed  by  the  statute  of  frauds, 
and  the  employee  is  discharged  without  cause  before  the  expiration  of  the 
period  of  employment,  he  is  not  limited  in  his  recovery  to  the  price  fixed  by 
the  contract,  but  may  recover  what  his  services  are  really  worth.13  * 

1  Fuchs  v.  Koerner  (N.  Y.),  The  Reptr.       App.),  46  N.  E.  Rep.  154. 

Feb.  1  [1888];   Amer.  &  Eng.  Ency.  Law          7  Hamilton  v.  Love  (Ind.  Sup.)  43  N.  E. 
Vol.  5,  p.  35,  »iml  Vol.  14,  pp.  795-7.  Rep.  873;  Efron  v.  Clayton   (Tex.),  35  8. 

2  14   Amer.    &    Eng.    Eucy.    Law  796;       W.  Rep.  424. 

Briscoe  «.  Litt  (Sup  ),  42  N.  Y.  Supp.  908;  8  Zender  v.  Seliger-Toothill  Co.  (Sup.), 

Chisholm    v.    Bankers    Life    Assur.    Co.  39  N.  Y.  Supp.  346. 

(Mich.),  70  N.  W.  Rep.  415  [1897].  9  Hamilton  D.  Love  (Ind.  Sup.),  43  N.  E. 

3  Tickler  v.  Andrae  Mfg.  Co.  (Wis.),  70  Rep.  873:  Babcock  v.  Appleton  Mf°-    Co, 
N.  W.  Rep.  292;  14  Amer.  &  Eug.  Eucy.  (Wis.),  67  N.  W   Rep   33;  Worthinfton  v. 
Law  796.  Oak  &  H.  P.  Imp.  Co.  (Iowa),  69  N.  W. 

4  Stone    «.    Vimont,    7  Mo.    App.    277;  Rep.  258. 

Harrington  v.  Gies,  45 Mich.  374;  14  Amer.  10  Missouri  Iron  Wks.  v.   Rivers   Arch. 

&  Eng.  Ency.  Law  796.  Co  ,  59  111.  App.  545. 

5  McMullan  v.  Dickinson  Co.  (Minn.),  65  n  Howard  v.  Gobel,  62  111.  App.  497. 
N.  W.  Rep.  661.  12  Schanzenbach  v.  Brough,  58  111.  App. 

6  Hamilton  D.  Love  (Ind.  Sup.),  43  N.  E.  526. 
Rep.   873;  and  see  Pape  V.  Lathrop  (Ind. 

*  See  Sec.  90,  supra. 


§211.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  205 

If  the  employee  sue  for  damages  he  can  recover  only  such  damages  as  he 
has  actually  sustained  by  the  discharge,  and  not  the  agreed  price  for  full 
performance.1  One  properly  sues  on  his  contract  of  employment  for  his 
salary,  rather  than  for  damages  for  breach  thereof,  where  he  has  not  been 
discharged,  and  has  held  himself  in  readiness,  though  he  has  rendered  no 
services,  because  no  work  has  been  offered  him.3 

210.  No  Recovery  for  Extra  Work,  Unless  so  Agreed. — When  a  person  is 
employed  as  an  agent  at  a  fixed  rate  and  additional  duties  are  imposed  and 
his  powers  enlarged  without  any  stipulation  that  he  is  to  receive  additional 
compensation,  the  agent  or  employee  cannot  recover  extra  wages  for  his 
additional  services.3     It  is  a  general  rule  that  voluntary  performance  of 
extra  work  by  a  servant  does  not  entitle  him  to  extra  pay.     If  he  gets  extra 
pay  for  his  extra  work  it  must  be  under  an  express  agreement  to  that 
effect.4 

It  has  been  so  held  when  the  statute  law  makes  eight  hours  a  day's 
work.  The  fact  that  an  employee  works  ten  or  twelve  hours  a  day  when 
hired  by  the  day  does  not  entitle  him  to  recover  for  the  two  hours  extra 
time  each  day,  unless  it  was  expressly  so  agreed  in  the  contract  of  employ- 
ment.5 A  contractor  who  is  to  complete  a  building  according  to  certain 
specifications  and  a  plan  annexed,  as  explanatory  thereof  for  a  fixed  amount, 
cannot,  in  the  absence  of  an  express  agreement,  recover  for  extra  services  in 
preparing  the  plan.6  * 

211.  Employment  of  Engineer  or  Architect  in  a  Professional  Capacity.7 — 
A  contract  of  employment  of  an  engineer  or  architect  or  a  so-called  engage- 
ment of  his  services  does  not  differ  from  any  other  contract  of  employment 
if  the  contract  is  expressed  and  its  terms  fully  understood,  but  this  is  not 
often  the  case.     The  whole  transaction  between  the  engineer  or  architect 
and  his  employer  frequently  is  embodied  in  a  few  words,  or  a  mere  verbal 
instruction  to     "make     some     sketches,"     or     "I     should     like     to    see 
your    suggestions    on    paper,"    followed   by    similar    directions    to     "  go 
ahead  "  with  the  plans  or  even  with  the  building.7     Such  contracts  for  ser- 
vices are  not  unlike  the  engagement  of  a  physician  or  an  attorney,  with 
which  all  are  familiar,  and  the  duties  that  may  be  required  under  such  an  em- 
ployment must  depend  largely  upon  the  established  and  universal  custom 

1  William  Farr  Co.  9.  Kiraebrough(Ky.),  28    S.  W.    Rep.    745,    Superintendent   of 
34  S.  W.  Rep.  528.  Buildings. 

2  Stone  v.  Bancroft  (Cal.),  44  Pac.  Rep.  4  14  A.mer.  &  Eng.  Ency.  Law  772;  and 
1069.  see  Forster  v.  Green  (Micb.),  69  KW.  Rep. 

As  to  Recovery  for  Services  when  term  of  647;  Voorhees  v.  Combs  (N.  J.),  4  Vr.  494. 
service  has  not  been  completed,  Remedies          6  Averill  ®.  United  States,  14  Ct.  of  01. 

of  Servants,  and  Breach  or  Abandonment  200;  and  see  People  v.  Beck  (N.  Y.  App.), 

by  Servant,  see  14  Amer.  &  Eng.  Ency.  39  K  E.  Rep.  80. 
Law  775,  779.  6  Maas  v.  Hernandez  (La.),  19  So.  Rep. 

3  Morean  9.  Dumagene,  20  La.  Ann.  230  269;  but  we  Dull  9.  Bramhall,  43111.  364. 
[1868];  Carrere  v.  Dun,  18  Misc.  Rep.   18          7  See  Emden's  Law  of  Building,  chap. 
[1896];  Chamberlain  9.  Kansas  City  (Mo.), 

*  See  Sec.  225,  infra. 


206        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  212. 

and  usage.  Physicians  are  called  upon  or  called  in  to  advise  in  reference  to 
a  patient's  treatment,  or  an  attorney  with  respect  to  a  point  of  law,  and  the 
law  implies  a  contract  on  the  part  of  the  patient  or  client  to  pay  what  the 
services  are  reasonably  worth,1  and  a  contract  on  the  part  of  the  physician 
or  lawyer  to  furnish  a  reasonable  degree  of  skill  and  care  in  the  administra- 
tion of  his  duties  and  functions,  such  as  is  ordinarily  possessed  by  members 
of  his  profession; a  and  to  furnish  the  attendance  and  services  usual  in  the 
practice  of  his  profession. 

The  engagement  of  an  engineer  or  architect  would  come  under  the  same 
rule  or  principle  if  his  duties  were  undefined.  They  would  depend  upon  the 
practice  of  the  profession  as  established  by  custom  and  good  usage.  The 
duties  of  an  engineer  or  architect  are  largely  determined  by  the  terms  of 
the  contract  for  the  erection  of  the  structure  and  works,  as  well  as  by  the 
contract  of  employment.  It  is  there  that  they  are  set  out  and  defined  with 
great  particularity,  and  when  they  have  been  so  described  either  in  the  con- 
tract of  employment  or  in  the  contract  for  the  work,  it  is  not  a  question  of 
what  proper  skill  and  care  he  should  exercise,  but  what  amount  of  care  and 
skill  he  has  bound  himself  thereby  to  bestow  upon  the  works.3  The  duties 
required  are  to  be  determined  from  the  contract  of  employment  and  what  is 
required  by  the  construction  contract,  and  if  these  fail  to  define  them,  by 
evidence  of  the  general  usage  of  engineer  and  architects.  The  intention  of 
the  parties  as  evidenced  by  all  these  will  control.4 

212.  What  Constitutes  an  Employment  of  an  Engineer  or  Architect?-— 
This  is  Often  a  Difficult  Question.5 — When  they  are  invited  to  submit  plans 
in  competition  with  others  for  approval  and  adoption,  or  to  contend  for 
prizes  offered  for  the  best  plans  to  be  determined  by  judges,  or  to  make  bid? 
according  to  plans  furnished,  subject  to  acceptance  by  a  board  or  committee 
of  public  works,  and  plans  have  been  accepted  provisionally  or  in  part,  or 
special  ingenious  features  been  copied  or  pirated  while  under  examination  for 
comparison,  or  by  permission  of  the  examiners  or  board  of  control,  then  the 
questions  of  employment  and  remuneration  arise. 

When  an  architect  prepares  plans  upon  the  terms  that  he  shall  be 
employed  to  carry  them  out  if  approved,  it  seems  he  has  no  claims  for  his 
services  if  they  are  disapproved.6  When  an  architect  prepared  plans  for  a 
jail  building,  which  plans  were  accepted  conditionally,  provided  that  a  bid 
should  be  received  from  some  reliable  party  for  the  building  of  the  jail,  and 

viii;  English;  Roscoe's  Digest  of  Building  4  Vigeant  v.   Scully,  20  Brad.  437:    see 

Cases  (3d  ed.)  1-10,  English;  Lloyd's  Law  Oilman  v.    Stevens,   54  How.  Pr.  (N.  Y.) 

of  Building,  chap,  ii ;    Clark's  Architect,  197. 

etc.,  Before  the  Law,  chaps,  i  and  ii ;  29  6  Kutts  v.  Pelby,  20  Pick.  65  [1838]. 

Amer.  &  Eng.  Ency.  Law  875-890.     See  6  Moflfat  «.  Dickson,  13  C.  B.  534  [1853]; 

Kutts  v.  Pelby,  20  Pick.  (Mass.)  65;  and  Moflat  v.  Laurie,   15   C.   B.   583;  Leake's 

Driscoll  v.  School  Dist.,  61  Iowa  426.  Digest  of  Contracis  640-641;  Ada  St.  M.  E. 

1  Nourry  v.  Lord,  3  N.  Y.  App.  392.  Ch.  ».  Garnsey,    66  111.    132;   Addison   on 

2  Utley  v.  Burns,  70111.  162  [1873];  and  Contracts  678;  but  see  Walsh  v.  St.  Louis 
see  Marcotte  v.  Beaupre,  15  Minn.  152.  Exposition,  90  Mo.  459,  16  Mo.  App.  502, 

3  Vigeant  «.  Scully,  20  Brad.  437  [1886J.  affirmed. 


ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  207 

the  board  of  supervisors  refused  to  open  any  of  the  bids  received,  and 
rejected  plaintiffs  plans  on  the  ground  that  he  had  been  guilty  of  improper 
acts  in  getting  his  plans  provisionally  accepted,  it  was  held  that  it  was 
within  the  discretion  of  the  board  to  refuse  to  open  or  accept  any  of  the 
bids  based  upon  plaintiffs  plans  and  that,  the  condition  upon  which  plain- 
tiff was  entitled  to  compensation  never  having  happened,  he  could  not 
recover;1  but  upon  appeal  it  was  held  that  the  plans  had  been  adopted 
within  the  meaning  of  the  act,  and  that  the  plaintiff  could  recover.2  The 
word  "  received"  as  used  was  held  not  to  include  the  acceptance  of  a  bid.a 
An  invitation  to  architects  to  submit  competitive  designs  of  a  building, 
giving  the  location  of  the  site  and  a  general  description  of  the  building 
which  it  proposes  to  erect,  the  designs  to  be  passed  upon  by  a  board  of 
expert  examiners,  the  author  of  the  design  accepted  to  be  employed  to  com- 
plete a  full  set  of  plans,  gives  no  claim  for  services  unless  the  plans  are  ac- 
cepted;4 and  when  it  was  further  stipulated  that  no  award  need  be  made 
by  the  examining  board  if  they  should  deem  none  of  the  designs  worthy,  it 
was  held  that  it  was  in  the  discretion  of  the  society  whether  the  examiners 
should  examine  the  designs  each  separately  for  himself  or  together  as  a 
board;  and,  further,  that  the  society  might,  after  taking  the  opinions  of  the 
examiners,  ignore  their  action  and  erect  such  a  building  as  it  chose.6 

For  plans  and  specifications  submitted  with  their  bids  for  work,  the 
engineers  or  architects  get  nothing  for  their  plans  and  trouble  if  their  bids 
are  not  accepted;6  and  the  same  is  true  if  his  pay  depends  upon  the  happen- 
ing of  an  event  that  never  comes  to  pass,  such  as  "  the  forming  of  a  club/* 
or  that  the  "plans  are  adopted,"  or  that  "we  decide  to  build,"7  or  "the 
sale  of  land  for  building  purposes,"  notwithstanding  the  contract  contains  a 
provision  that  "  in  the  event  of  the  architect's  services  being  dispensed  with 
at  any  time,  he  should  be  remunerated  for  the  time,  trouble,  and  expense 
he  had  been  put  to  in  making  the  said  preparations,"  he  not  having 
offered  to  prove  that  his  services  had  been  dispensed  with.8  If  an  architect 
voluntarily  draws  plans  with  the  hope  or  expectation  of  being  employed  as 
architect  and  superintendent,  he  cannot  recover  if  not  employed.  There 
must  be  a  contract  of  employment  either  expressed  or  implied.9 

When  a  committee  had  been  authorized  by  a  resolution  of  a  board  of 

1  Hall  0.  County  of  Los  Angeles  (Cal.),       inal  cost  of  advertising. 

13  Pac.  Ren.  854.  6  Woods'  Master  and   Servant  (2d  ed.) 

2  Hall  v.  Los  Angeles,  74  Cal.  502  [1888].  103. 

3  Hall  0.  Los  Angeles,  supra.  n  Romeyn  0.   Sickles,    108    K    Y.    650 

4  Moffat  V.  Dickson,  22  L.  J.  C.  P.  265  [1888]. 

[1853).  8  Moffatt  0.  Laurie,  15  C.  B.  582  [1855.] 

5  Donaldson  0.  Detroit  Museum  of  Art  9  Allen  0.  Bowman,  7  Mo.  App.  29;  Nel- 
(Micb.)  40  N.  W.  Rep.  33  [1888].     A  just  son  0.  Spooner,   2  F.  &  F.  613;   Moffatt  v. 
rule,  perhaps,   in   law,   but   it,  affords  no  Dickson,    13   C.    B.    543;    Smithmeyer  0. 
protection  to  the  architectural  profession,  United  States,    147   U.   S.    342;   Tilley  0. 
from  whom  a  society  could  secure  many  Cook  Co.,  103  U.  S.  155;  and  see  Chicago 
designs  and  practical  hints  and  beautiful  0.  Tilley,  103  U.  S.  146;  Dunton  0.  Cham- 
features  for  a  structure  for  the  mere  nom-  berlain,  1  Bradw.  361. 


208      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  212. 

directors  of  a  school  district  to  procure  plans  for  a  school-house  and  present 
the  same  at  the  next  regular  meeting,  and  the  committee  called  on  an 
architect  and  said,  "We  have  come  to  select  plans  for  a  school-house,"  and 
they  selected  one  and  gave  directions  to  make  some  changes,  asked  the 
architect  to  meet  the  board,  and  expressed  themselves  suited,  and  that  they 
did  not  care  to  look  further;  it  was  decided  that  clearly  the  architect  was 
•employed  to  prepare  plans,  and  that  his  amount  of  recovery  should  be  de- 
termined by  the  jury,  that  the  fact  that  the  plans  were  returned  to  the 
architect  and  not  used  did  not  alter  the  case;  and  that  though  it  was  fur- 
ther claimed  that  there  existed  a  universal  custom  among  architects  to  pre- 
pare and  furnish  plans  for  buildings  and  take  their  chances  of  the  same 
being  approved  or  adopted  before  they  were  entitled  to  compensation,  yet 
the  custom  not  being  proved,  the  architect  was  allowed  to  recover.1  Where 
plans  have  been  submitted,  by  direction  of  a  landowner,  by  an  architect, 
who  afterwards  took  them  away,  the  taking  of  the  plans  was  held  not  to 
be  of  itself  an  admission  that  the  services  were  wholly  voluntary  and  .with- 
out any  idea  of  compensation.2  When  an  architect  at  the  request  of  a  pro- 
prietor prepared  plans  for  a  theater,  drew  a  sketch  of  a  front  which  was 
presented  to  and  kept  by  the  proprietor  for  a  week,  who,  being  pleased 
with  it,  directed  the  architect  to  make  the  plans,  and  the  proprietor  directs 
his  master-builder  to  call  on  the  architect  and  make  an  estimate  of  its  cost, 
which  he  did,  keeping  the  plans  for  a  week,  and  afterwards  the  proprietor 
having  decided  not  to  build  refused  to  pay  for  the  plans,  it  was  held  that 
there  had  been  a  proper  delivery  of  the  plans  and  that  the  architect  was 
entitled  to  compensation  for  his  services.3 

If  one  of  the  several  plans  drawn  for  a  church  building  be  accepted  on 
condition  that  the  building  could  be  built  for  a  certain  sum,  and  it  is 
ascertained  that  it  cannot  be  built  for  such  sum  and  the  plans  are  rejected, 
there  is  a  failure  to  show  any  promise  to  pay  for  the  plans,  and  the  archi- 
tect is  not  entitled  to  recover  for  making  the  plans.4  A  propositon  to  cer- 
tain architects  which  has  been  made  for  plans  and  specifications  of  a  certain 
proposed  building  under  the  terms  of  which  each  architect  shall  receive  a 
definite  sum,  irrespective  of  merit,  and  this  further  clause,  "That  the 
architect  who  is  successful  shall  not  receive  the  compensation  named,  but 
he  shall  be  engaged  as  architect  and  superintendent  and  shall  be  paid,  etc.; " 
the  architect  whose  plans  were  accepted  as  the  most  meritorious  of  all  has  a 
right  of  action  for  refusal  to  employ  him  as  architect  and  superintendent.5 

If  one  proposes  to  erect  a  building  and  employes  an  architect  by  con- 
tract in  writing  to  draw  up  plans  and  specifications,  superintend  the  work 

1  Driscoll  v.  The  Ind.  School  Disk,  64      Spooner,  2  F.  &  F.  613. 

Iowa  426  [1883].  4  Ada  St.  M.  E.  Ch.  ®.  Garnsey,  66  111. 

2  Nourry  v.  Lord,  2  Keyes  617  [1866].  132  [1872];  Marsh  «.  Astoria,  etc.,  27  Ills. 

3  Kutts  v.  Pelby,  20  Pick.  65  [1838];  and      421. 

see  Shipman  v.  State,  42  Wis.  377;  Mar-  5  Walsh  v.  St.  Louis  Ex.  &  Mus.  Hall 
cotte  v.  Beaupre,  15  Minn.  152;  Nelson  v.  Assn.,  90  Mo.  459  [1886]. 


§  213.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  209 

and  audit  claims,  he  cannot  show  by  parol  evidence  that  the  building  was 
not  to  be  erected,  and  the  architect  not  to  be  paid  unless  a  loan  could  be 
procured  for  that  purpose.  The  fact  that  he  was  to  be  paid  in  install- 
ments, one  when  the  drawings  were  made  and  the  balance  at  specified 
stages  of  the  work,  it  not  appearing  that  the  first  payment  was  intended  as 
the  price  of  the  drawings  did  not  make  the  contract  divisible,  and  though 
the  employer  failed  to  build,  the  contract  price  was  held  to  be  entire,  and 
the  value  of  the  archtect's  services  constituted  the  measure  of  damages.1 
When,  however,  the  contract  was  to  pay  two  and  one-half  per  cent,  of  the 
estimated  cost  for  the  preparation  of  the  plans,  and  the  payment  of  three 
per  cent,  and  five  per  cent,  were  contingent  engagements  to  be  performed 
after  the  plans  were  prepared,  the  contract  was  held  divisible,  and  the 
architect  having  been  discharged  after  the  prepartion  of  the  plans,  he  was 
allowed  to  recover  the  two  and  one-half  per  cent.  only.a 

Under  a  contract  to  furnish  the  necessary  drawings,  specifications,  and 
details  for  a  certain  percentage  on  the  total  cost  of  the  structure,  the  archi- 
tect, after  furnishing  the  drawings,  etc.,  is  not  limited,  in  case  his  employ- 
ment is  terminated  before  the  building  is  completed,  to  a  recovery  of  the 
percentage  on  the  cost  of  the  building  in  so  far  as  it  was  at  the  time  com- 
pleted.3 

213.  What  Is  a  Performance  of  a  Contract  of  Service?  —  An  architect 
was  held  to  have  complied  with  his  contract  to  furnish  plans  and  specifica- 
tions for  a  building  to  cost  $10,000  when  he  had  furnished  plans,  etc.,  for 
a  building  that  would  cost  $16,000,  at  the  same  time  making  proposals 
to  reduce  the  cost  in  certain  respects,  making  the  plans  to  apply  to  a  build- 
ing that  would  not  cost  more  than  $10,000.'  Plans  and  estimates  of  a 
building  to  cost  $102,000,  exclusive  of  architect's  and  superintendent's  fees, 
the  latter  of  which  would  have  been  five  per  cent,  if  the  architect  had  the 
superintendence,  was  held  to  be  a  sufficient  compliance  with  a  contract  to 
prepare  plans  and  estimates  of  a  building  to  cost  about  $100,000,  and  the 
opinion  was  further  expressed  that  plans  for  a  building  to  cost  $100,000, 
would  not  satisfy  a  contract  for  a  building  to  cost  not  more  than  $75,000, 
nor  does  it  necessarily  follow  that  it  would  be  satisfied  by  plans  for  a  build- 
ing to  cost  any  sum  between  $75,000  and  $100,000.* 

When  a  contract  for  the  preparation  of  plans  and  specifications  stipu- 
lated that  the  architect  should  have  said  plans  and  specifications  drawn  in 
a  good  and  sufficient  manner,  to  be  altered  and  changed  in  such  manner  as 
the  board  of  commissioners  might,  at  any  time,  deem  proper  and  best,  and 
that  the  said  architect  should  make,  alter,  and  change  the  same  plans  until 

1  Marquis  v.  Lauretson  (la.),  40  N.  W.  962;  and  see  Scott  v.  Maier,  56  Mich.  514; 

Rep.  73  [1888].  Chicago  v.  Tilley,  13  Otto  146;  Lambert 

9  Ebdy  v.   McGowan,   Roscoe's    Digest  v.  Sauford,  55  Conn.  437. 
Bldg.  Cases  134;  and  see  Clark's  Architect,          4  Smith  v.  Dickey,  74  Tex.  61  [1889],  see 

etc.,  before  the  Law,  chap.  viii.  Nelson  v.  Spooner,  2  F.  &  F.  613. 

8  Havens  v.  Donahue  (Gal.),  43Pac.  Rep. 


210      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  214. 

the  said  board  of  commissioners  should  be  satisfied,  it  was  held  the  request 
to  make  changes  should  come  from  the  board  acting  officially  and  not  from 
individual  members  acting  in  their  private  capacity.1  * 

When  a  premium  has  been  offered  for  plans,  which  have  been  adopted 
and  the  promised  compensation  been  paid  to  the  architect,  it  was  held  he 
could  collect  no  more,  notwithstanding  a  usage  among  architects  to  super- 
intend the  building  of  their  designs  at  five  per  cent.;  that  when  there  is  no- 
contract  expressed  or  implied,  usage  or  custon  cannot  make  one.2  A  reso- 
lution passed  by  a  board  of  public  works,  which  has  supervision  of  the 
superintendent  of  buildings,  to  the  effect  that  C,  superintendent  of  build- 
ings, shall  be  architect  of  the  City  Hall,  and  shall  have  supervision  of  the 
construction  thereof,  was  held  not  to  constitute  a  contract  of  employment 
of  0,  as  supervising  architect,  authorizing  a  recovery  by  him  for  his  ser- 
vices as  such  in  addition  to  his  salary.3  In  a  case  where  an  architect  had 
been  regularly  employed  to  make  plans  and  designs  for  a  building,  evidence 
was  received  to  prove  a  custom  that  the  employment  carried  with  it  an  en- 
gagement to  superintend  its  construction.4 

214.  Recovery  for  Services  Rendered. — The  obligation  of  paying  for  the 
drawings  of  an  architect  usually  rests  upon  the  employer,  and  not  upon  the 
mechanic  who  executes  the  work.  If  an  owner  has  requested  an  architect 
to  furnish  a  design,  and  paid  him  for  it,  but  did  not  employ  him  to  prepare 
drawings  and  would  not  pay  him  for  them,  it  was  held  that  the  fact  that  the 
owner  was  not  liable  was  not  sufficient  to  charge  the  builder.  The  builder 
not  having  made  any  prior  request  for  plans,  nor  any  subsequent  promise  to 
pay  for  them,  could  not  be  charged  with  the  obligation  of  paying  for  them.* 
The  same  question  of  responsibility  arises  in  the  employment  of  engineers 
when  called  upon  to  stake  out  work.  In  engineering  work,  generally,  the 
obligation  to  pay  rests  upon  the  person  who  requested  the  work  to  be  done,5 
unless  it  is  work  that  properly  belongs  to  the  engineer  by  his  contract  with 
company  or  by  the  contract  between  his  company  and  the  contractor. 

Where  an  architect  performs  work  and  labor  upon  a  building  on  the  joint 
employment  of  two  persons,  an  action  will  be  against  them  jointly,  although 
no  partnership  exists  between  them  in  either  the  land  or  building.  Such 
joint  employment  may  be  inferred  from  circumstances,  as  when  both  the 
defendants  have  given  directions  as  to  the  work,  its  character,  and  mode  of 
execution;  and  when  one  denies  his  liability,  his  promises  to  pay  certain 
bills  relating  to  the  construction  of  the  building,  the  indorsements  by  him  of 
notes  therefor,  his  ownership  of  the.  land  and  ultimately  of  the  building,  and 

1  Board  of  Com'rs.  *>.  Bunting  (Ind.),  12  S.   W.  745;  and  see  Walsh  v.   St.   Louis 
N.  E.  Rep.  151  [1887].  Exposition,  101  Mo.  534. 

2  Tilley  v.  Co.   of  Cook,   103  U.  S.  955  4  Wilson  v.  Bauinan,  80  111.  493  [1875]. 
[1880].    Compare  First  Unit.  Soc.  «.  Faulk-  5  Webb  v.    School,  3  Phila.    (Pa.)    125 
ner.  91  U.  S.  415.  [1858]. 

8  Chamberlain  v.  Kansas  City  (Mo.),  28 

*  See  Sec.  39. 


§  214.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  211 

his  uniting  in  the  examination  of  accounts  of  the  architects  and  in  settling 
the  balance  due,  are  sufficient  evidence  to  support  the  judgment.1 

A  custom  to  charge  a  percentage  of  the  architect's  own  estimate  of  the 
cost,  it  seems,  cannot  be  resorted  to  to  determine  an  architect's  compensation 
for  preparing  preliminary  sketches  not  accepted.  Such  a  custom  was  held 
unreasonable  and  preposterous.2  Such  services,  unless  volunteered,  should 
be  paid  for,  if  at  all,  according  to  the  time  spent  upon  them,  or  according 
to  such  understanding  as  could  be  fairly  implied  from  circumstances,3  and 
not  according  to  the  schedule  of  charges  of  the  American  Institute  of  Archi- 
tects, especially  when  the  architect  has  accepted  a  salary.4 

If  the  compensation  is  agreed  upon  as  a  percentage  of  the  estimated  cost 
of  the  buildings,  the  architect  may  recover  on  the  reasonable  cost,  according 
to  his  plans  and  specifications,  and  bids  made  by  third  persons  may  be  used 
to  show  what  is  a  reasonable  cost.5  The  architect  is  a  competent  witness  in 
his  own  behalf  upon  the  question  of  the  value  of  his  labor  in  drawing  plans," 
as  are  other  architects.  * 

The  employment  of  engineers  is  often  equally  perplexing.  Frequently 
they  are  called  upon  to  render  advice  or  services  by  officers  of  corporation, 
whose  authority  is  questionable,  and  if  the  advice  or  services  turns  out  to  be 
unnecessary,  unprofitable,  or  expensive,  the  company  sometimes  seek  to 
avoid  paying  for  it.  A  letter  from  a  secretary  of  a  provisional  committee 
organized  for  the  purpose  of  projecting  a  railway  and  signed  by  him,  to  an 
engineer  conveying  a  record  of  minutes  of  a  meeting  of  the  committee,  that 
it  was  resolved  that  E.  (the  engineer)  be  requested  to  accept  the  office  of 
"  joint  engineer  to  the  line/'  was  held  to  be  inadmissible  as  evidence  of  the 
engineer's  employment,  as  were  the  minutes  themselves,  not  being  signed  by 
the  chairman,  and  no  proof  being  offered  that  there  was  a  meeting  on  that 
day,  or  who  was  present.7 

If  an  engineer  is  called  and  consulted  with  regard  to  works,  and  his  plans 
and  estimates  have  been  adopted  by  the  board  of  directors  of  a  company,  his 
employment  may  be  said  to  have  been  proved,  without  any  formal  contract. 
The  fact  that  he  was  recommended  to  the  company,  and  its  officers  set  him 

1  Beach  v.  Raymond,  2  E.  D.  S.  (K  Y.)  342 ;  but  see  Oilman  ®.  Stevens,  54  How. 
496  [1854].  Pr.  (K  Y.)  197. 

2  Tilly  fl.  Cook,  13  Otto  155;  Lloyd's  Law  6  Lambert   v.    Sanford,     55   €onn.    437 
of   Building,  etc.,  11,  citing  Eddy  v.  Me-  [1887];  and  see  Roeder  v.  Bensberg,  6  Mo. 
Gowan,  not  reported  ;   but  see  Knight  v.  App.  445;  Sbipman  D.  State,  43  Wis.  381; 
Norris,  13  Minn.  473;  Irving  v.  Morrison,  Irving  a.    Morrison,  27   TL  C.  C.  P.  242; 
37  C.  P.   (Upper  Canada)  242  ;  and  Mulli-  Maack    v.    Schneider,    51    Mo.    App.    92. 
gan  v  Mulligan,  18  Ln.  Ann.  20,  contra.  Agreements  are  sometimes  made  forbid- 

3  Scott  v.    Muier,    56   Micb.  554  [1885];  ding  or  preventing    any    extra    charges. 
semble,  Marcotle  v.  Beaupre,  15  Minn.  152;  Baltimore  Gem,  Co.  v.  Coburn,  7  Md.  202; 
Dull  v.  Bramhall,  49  111.  364,  whfit  is  rea-  Abbott  v.  Gatcb,  13  Md.  314. 

sonable;    Lloyd's    Law   of    Building    (2d          6  Nourry  v.  Lord,  2  Keyes  R.  617  [18661. 
ed.),  §  8.  7  Rennie  D.  Wyun,  4  Exch.  691  [1849]. 

4Suiitbmeyer  v.  United  States,  147  U.  S. 

*  See  Sec.  291,  infra. 


212      ENGINEERING  AND   ARCHITECTURAL  JURISPRUDENCE.    [§  214. 


at  work,  if  the  company  had  the  benefit  of  his  services  knowingly,  they  are 
liable  to  him  for  their  value.1 

So  it  has  been  held  that  an  engineer  is  entitled  to  recover  for  services  and 
advances  rendered,  with  the  knowledge  and  consent  of  the  company's  engi- 
neer and  attorney,  and  which  were  essential  in  preparing  to  construct  a  rail- 
road, and  for  drawings  procured  and  paid  for  by  him,  and  approved  by  the 
company's  president.8 

When  an  engineer  was  assured  by  a  company's  engineer  that  he  would  be 
made  a  subcontractor  and  subrogated  to  the  rights  of  the  contractor,  and  he 
received  a  notice  of  the  approval  of  this  arrangement  by  the  board  of  direc- 
tors, through  the  attorney  of  the  company,  it  was  held  he  was  entitled  to 
recover  for  his  services  and  expenditures  on  the  company's  refusal  to  award 
Mm  the  contract.  The  fact  that  the  engineer  and  attorney  were  not  duly 
appointed  by  the  company,  until  the  meeting  when  the  directors  approved 
of  the  arrangement  of  subrogation,  did  not  alter  the  case,  for  the  engineer 
and  attorney  represented  and  acted  with  the  authority  of  the  company.2 

Under  a  charge  for  services,  an  engineer  may  prove  and  recover  for  ser- 
vices whether  performed  by  himself  or  an  assistant, or  by  both,  unless  it  appears 
by  the  nature  of  the  terms  of  the  employment  that  the  personal  services  of 
that  particular  engineer  were  contracted  for  and  no  other  person  could  under 
the  agreement  fill  his  place;  he  may  under  an  allegation  of  services  performed 
by  him  prove  that  they  were  performed  by  another  person  under  him.3 

The  employment  of  an  engineer  to  survey  and  establish  a  railroad  line 
clothes  him  with  authority  to  employ  subordinates  and  assistants  for  the 
purpose  on  behalf  of  the  railroad  company,  and  such  assistants  are  the  ser- 
vants of  the  company.4 


'Moline  W.  P.  &  Mfg.  Co.  v.  Nichols, 
26  111.  90  [1861]. 

2  Wilson  v.  Kinss  Co.  El.  R.  Co,,  21  N. 
E.  Rep.  1015  [1889]. 


3  Leet  v.  Wilson,  24  Cal.  398  [1864], 
4Gillis0.  Duluth,  etc.,  R.    Co.    (Minn.), 

25  N.  W.  Rep.  603  ;  New  Orleans,  etc., 

R.  Co.  v.  Reese,  61  Miss.  581. 


CHAPTER   IX. 

PROPERTY  OF  ENGINEERS  OR  ARCHITECTS  IN  DESIGNS  AND 

INVENTIONS. 

OWNERSHIP     OF     PLANS,     SPECIFICATIONS,    AND     DRAWINGS.        CORPOREAL 
AND   INCORPOREAL   PROPERTY   RIGHTS. 

215.  Ownership  of  Plans,  Drawings,  and  Designs. — It  is  customary  for 
engineers  and  architects  to  retain  the  ownership  of  their  plans  by  a  special! 
agreement  with  their  employers  to  that  effect.  In  the  absence  of  such  an 
agreement  or  understanding,  it  has  been  held  that  the  employer  is  entitled 
to  keep  them  when  he  has  paid  the  architect  a  reasonable  remuneration  for 
his  services.  A  custom  to  the  contrary  was  adjudged  "unreasonable,  im- 
possible, and  suicidal."  In  this  case  the  architect's  services  had  been  dis- 
pensed with  before  the  building  was  completed,  and  the  judge  compared  it 
to  an  attorney  refusing  to  deliver  up  the  papers  of  his  case  to  his  client 
because  his  employment  was  determined.1  The  French  courts  have  also 
given  the  owner  the  right  to  the  plans  when  he  had  paid  for  them,  or  had. 
recompensed  the  architect  or  engineer.2 

Whether  the  same  rule  would  be  held  as  to  the  ownership  of  plans  after- 
the  building  was  completed  is  doubtful;  and  it  is  equally  dubious  that  a  - 
client  can  demand  the  papers  and  documents  prepared  by  an  attorney  in 
conducting  his  case  after  the  trial  is  concluded.  It  is  certain  that  it  is  the  • 
universal  practice  of  architects  to  take  or  retain  their  plans,  both  in  Eng-  - 
land  and  the  United  States,  when  the  structure  has  been  completed. 

Alabama  affords  a  case  where  an  architect  who  took  the  plans  and  speci- 
fications away  from  an  unfinished  building  was  prosecuted  by  the  builder 
for  larceny  [stealing].  It  was  held  by  the  Supreme  Court  that  the  builder 
was  entitled  to  the  use  and  possession  of  the  plans  during  the  construction 
of  the  building  and  that  he  might  have  a  special  property  in  them,  the  in- 
vasion of  which  would  be  a  trespass,  even  though  under  the  contract  the? 
ownership  of  the  plans  was  in  the  architect.  To  constitute  larceny  the- 
wrongful  taking  must  have  been  secret  or  fraudulent,  and  done  with  felonious; 
intent  to  convert  the  property  to  the  taker's  own  use  and  to  deprive  the> 

1  Ebdy  v.  McGowan,  Ct.  of  Exch.,  Nov.       Architect,  etc.,  Before  the  Law  129. 
17, 1870,  The  Times;  s.  c.,  Roscoe's  Digest          2  Dalloz  1871,  2,  83;  1849,  2,  171. 
of  Building  Cases  134;    and  see  Clark's 

213 


214     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE    [§  216. 

owner  of  his  property.  If  taken  openly  in  the  presence  of  the  owner,  or 
in  the  presence  of  other  persons  known  to  him,  the  taking  and  carrying 
away  would  be  a  mere  civil  tort.  Here  the  architect  committed  a  trespass 
when  he  took  the  plans  away  from  the  builder  without  his  consent,  after  an 
unconditional  delivery  of  them  to  him.1 

This  case  further  held  that  the  architect  might  show  the  existence  of  a 
universal  custom  among  architects  and  builders  to  the  effect  that  the  plans 
and  specifications  belonged  to  the  architect  by  whom  they  were  made.2 
When  plans  are  submitted  in  competition  for  a  cash  prize,  it  has  been  held 
that  those  plans  which  were  awarded  the  prize  became  the  property  of  the 
party  inviting  the  competition  upon  tendering  the  amount  of  the  prize 
offered.3  When  competitive  plans  are  sent  by  a  common  carrier  to  the 
parties  inviting  competition  and  their  delivery  is  delayed  until  after  the 
time  specified,  owing  to  the  negligence  of  the  carrier's  employees,  the 
damages  to  be  assessed  is  the  value  of  the  architect's  chances  in  getting  the 
prizes,  and  not  the  value  of  the  time  and  labor  expended  in  making  said 
plans  and  specifications.  To  recover  anything  more  than  nominal  damages 
the  architect  should  show  that  there  was  some  probability  of  his  plans  being 
adopted.4  A  later  Massachusetts  case  held  that  when  plans,  delivered  to  an 
express  company,  had  been  lost  in  transit,  the  damages  were  the  value 
of  the  plans  to  the  person  to  whom  they  were  sent,  not  their  immediate 
value,  as  that  would  include  damages  for  the  delay  in  building  the  structure, 
which  could  not  be  given.  The  fact  that  the  plans  had  a  special  value  to 
the  architect  which  could  not  be  purchased,  and  that  he  had  other  contracts 
and  had  undertaken  other  work  in  expectation  of  having  these  plans  for  im- 
mediate use,  cannot  be  considered.  The  measure  of  damages  was  held  to  be 
the  reasonable  cost  of  new  plans  and  any  other  expenses  reasonably  incurred 
in  procuring  new  ones.5 

216.  Incorporeal  Property  in  Architectural  and  Engineering  Designs.— 
Copyright  and  Patent-right. — However  doubtful  the  ownership  of  the 
plans  themselves  may  be — i.  e.,  the  corporeal  embodyment  of  the  design,  or 
the  paper  or  cloth  which  bears  or  conveys  the  conceptive  ideas  and  designs 
of  the  engineer  or  architect — it  cannot  be  doubted  that  any  use  of  his  plans 
without  his  permission,  such  as  copying  them  or  reproducing  them,  or  even 
building  from  them,  would  be  a  tort  to  the  architect's  natural  property  in 
his  own  creations,  as  much  as  the  copying  of  an  artist's  painting  or  the 
modeling  of  a  sculptor's  work  of  art.  The  one  is  the  creation  of  an 

1  Lumsford  v.   Dietrich,    86    Ala.     250  360;  but  see  Watson  v.  Ambergate,  15  Jur. 

S888]  ;  see  also  Marcotte  «.  Beaupre,  15  448. 

inn.  152.  5  Mather   «.    American    Exp.    Co.,    138 

2  Lumsford    v.    Dietrich,    86  Ala.    250  Mass.  55  [1884],  citing  Hadley  v.  Baxen- 
[1888];  but  see  Tilley  v.  Cook  Co.,  103  U.  dale,  9  Ex.  341;  Green  v.  Boston  &  L.  R. 
S.  162.  Co.,  128  Mass.  221 ;  and  see  Clark's  Ar- 

3  Walsh  v.  St.  Louis  Exp'n,  101  Mo.  534,  chitect,  etc.,  Before  the  Law,  26. 

4  Adams  Exp.  Co.  t.  Egbert,  36  Pa.  St. 


§  216.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  215 

engineer's  or  architect's  cultivated  taste  and  training,  the  other  perhaps  of 
an  artist's  perception,  taste,  and  genius.1 

.Both  are  works  of  art,  and  one  should  be  protected  as  much  as  the 
•other.  Surely  not  because  the  one  is  the  more  vulgar,  for  the  law  protects 
from  publication  or  reproduction  the  most  insignificant  sketch,  picture- 
card,  and  every  manuscript  book  or  personal  letter  written.  An  architect's 
plans  are  his  own  creation,  and  one  can  have  no  better  rights  or  claims  to 
a  property  in  a  thing  than  that  which  owes  its  existence  to  his  own  creative 
genius. 

This  property,  however,  is  vested  by  law  in  him  only  so  long  as  he  re- 
tains possession  and  control  over  his  incorporeal  creation.  If  the  artist 
sell  his  picture  or  the  author  his  book,  or  either  makes  a  profitable  use  of 
it,  such  a  use  as  it  was  designed  for  or  intended,  he  may  lose  that  inherent 
and  exclusive  right  to  his  own  creation,  and  it  becomes  the  common  property 
of  a  jealous  and  selfish  public.2  An  author  may  give  away  a  copy  of  his 
manuscript,3  he  may  send  it  as  a  communication  to  another,  as  in  the  case 
of  a  letter  to  a  friend,4  he  may  permit  a  copy  to  be  made,5  he  may  lecture 
from  it  in  public  or  in  the  class-room,6  he  may  have  it  printed  and  distrib- 
ute copies  among  his  friends  or  an  association,  if  it  be  expressly  understood 
and  agreed  that  their  use  shall  be  restricted  and  that  they  are  not  to  be 
sold,  and  that  the  act  of  distribution  is  not  a  publication.7  A  consignment 
of  a  lot  of  books  to  a  bookseller,  with  orders  not  to  sell  until  a  certain  date, 
is  not  a  publication  until  sold,  after  that  date.8  Nor  is  the  delivery  of 
copies  of  a  report  to  the  state,  without  any  distribution  thereof,  a  publica- 
tion.9 The  sale  of  a  book  is  prim  a  facie  a  publication.10 

The  artist  may  exhibit  his  picture  in  a  public  salon  "  without  losing  his 
exclusive  right  to  multiply  copies,  publish  it,  or  his  exclusive  right  to  a 
copyright.  If  he  publishes  work  or  sells  copies  of  it  without  first  securing 
a  copyright  from  the  government,  his  sole  right  to  an  exclusive  enjoyment 
of  the  fruits  of  his  labors  is  gone.  He  should  first  secure  the  protection 
of  the  government  in  whose  territory  he  expects-  to  sell  it.12 

The  same  holds  with  regard  to  all  intellectual  productions  which  have 


1  N.   E.    Monumental    Co.    v.    Johnson  peal,   107  Pa.  St.  221  [1884]  ;   Abernetby 

<Pa.),  22  All.  Rep.  974.  v.  Hutcbinson,  1  H.  &  T.  28;  Nicbols  «. 

'  Accord,  Holmes  v.  Donohue  (C.  C.),  77  Pitman,  L.  R.  26  Ob.  D.  374 

Fed.  Rep.  179.  7  Jewelers'    Merc.    Agcy.    v.    Jewelers' 

:5  Queensbury  v.  Sbcbbare,  2  Eden  329;  Wkly.  Pub.   Co.,  32  N.  Y.  Supp.  41;  but 

Blunt  v.  Patten,  2  Paine  (U,  S.)   393,    a  see  Riguey  v.  Dutton  (C.  C.),  77  Fed.  Rep. 

map.  176. 

4  Pope  «.  Curie,  2  Atk.  342  ;  Thompson  8  Wall  v.  Gordon,  12  Abb.  Pr.  N.  S.  (N. 
•».  Stanhope,   Ambler  737;  American  cases  Y.)  349. 

cited,  4  Amer.  &  Eng.  Ency.   Law   151,  9  M3rers  v.  Callalmn,  5  Fed.  Rep.  726. 

note.  10  Baker  v.   Taylor,   2    Blatcbf.    (U.   S.) 

5  Forrester  v.  Waller,  2  Eden  328;  Bart-  82;  Risrney  v.  Dutton,  supra. 

lett  v,  Crittenden,  5  McLean  (U.  S  )  32.  n  Werckmeister  v.  Springer  L.  Co.  (C. 

6  Caird  v.  Sime  (Eng.),  12  App.  Cas.  326,  C.).  63  Fed.  Rep.  808. 

3  Ry.  &  Corp.  L.  J.  343  [1887];  Miller  Ap-  12  Rigney  t>.  Dutton,  supra. 


216     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  216. 

been  made  the  subject  of  statutory  copyrights,  including  maps,  charts,* 
musical  compositions,  engravings,  photographs/  paintings,  works  of  sculp- 
ture, etc.;  in  short,  all  productions  of  literature,  the  drama,3  music,  and 
art,  and  even  the  letters  a  man  has  written,  are  within  the  protection  of  the 
law,  whether  of  literature,  art,  or  science,  if  such  work  is  unpublished,  and 
kept  for  his  private  use  or  pleasure.  That  his  rights  are  absolute  cannot 
be  disputed.4  Nobody  has  a  right  to  publish  them,  to  multiply  copies  of 
them,  without  permission  of  the  author  or  artist  who  first  wrote,  painted, 
draughted,  modeled,  or  made  them;  in  short,  created  them.6  The  passage 
by  Congress  of  the  copyright  statutes  has  not  abrogated  the  common-law 
right  of  an  author  to  his  unpublished  manuscript.6 

What  will  constitute  a  publication  of  a  piece  of  statuary,  a  monumental 
design,  a  triumphal  arch,  or  an  artistic  structure,  as  an  art  building,  or  even 
an  apartment  house,  has  not  been  decided.  It  has  been  said  that  any  profit- 
able use  for  which  the  work  was  intended  would  amount  to  a  publication, 
and  the  opinion  has  been  judicially  expressed  that  pieces  of  statuary  which 
decorated  public  squares  and  other  like  places  are  published  by  being  so- 
publicly  exhibited.7  A  gateway,  a  monument,  or  an  architectural  edifice 
would  be  subject  to  the  same  line  of  reasoning. 

It  had  also  been  intimated  that  the  public  exhibition  of  a  picture  would 
be  a  publication,  but  a  recent  case  has  decided  that  the  exhibition  of  a  paint- 
ing in  a  public  salon,  or  the  printing  in  the  salon  catalogue  of  a  crayon  sketch 
of  the  same  painting,  did  not  amount  to  such  a  publication  of  it  as  to  work 
a  forfeiture  of  the  right  to  a  copyright,  unless  the  general  public  was  per- 
mitted to  take  copies  of  it.8  In  any  case,  it  is  a  question  of  intention  of  the 
author  whether  or  not  he  has  parted  with  his  original  rights  in  the  crea- 
tion.9 

Whether  a  copyright  would  be  granted  upon  an  architectural  or  engi- 
neering structure  as  a  work  of  art  has  never,  it  is  believed,  been  decided; 
but  so  far  as  principle  is  concerned,  it  is  difficult  to  understand  why  it 
should  not  be  given  protection  as  well  as  a  painting  or  a  piece  of  statuary. 
Indeed,  in  some  cases  it  would  be  difficult  to  draw  the  line  between  the  sub- 
ject of  art  entitled  to  protection  and  the  edifice  which  would  not  be  pro- 
tected. That  section  of  the  English  copyright  act  which  gives  protection 
to  statuary  mentions  only  the  human  body  and  its  parts  and  dress,  and  the 
figures  of  animals,  which  would  not  include  ordinary  decorations  of  wood 
and  stone  as  applied  to  architectural  structures. 

1  Rees  «.  Pettizer,  75  111.  475.  Fed.  Rep.  196. 

2  Falkc.  Donaldson  (C.  C.),  57  Fed.  Rep.  7  Turner  v.  Robinson,  10  Irish  Ch.  516 
32.  [I860];  Copiuger's  Law  of  Copyright  382, 

3  Aronson  v.  Baker  (N.  J.),  12  All.  Rep.  383. 

177  [1888].  8  Werckmeister  v.  Springer  Lithograph 

4  Drone's  Law  of  Copyright  174;  Press  Co.   (C.    C.),   63  Fed.    Rep.   808;  but  see 
Pub.  Co.  v.  Monroe  (C.  C.  A),  73  Fed.  contra,  Pierce  &  B.  Mfg.  Co    v.  Werck- 
Rep.  196.  meister  (C.  C.  A.),  72  Fed.  Rep.  54. 

5Amer.  &  Eng.  Ency.  Law  148-150.  9Prof.  Largdell  in  his  lectures  at  Har- 

6  Press  Pub.  Co.  v.  Monroe  (C.  C.  A.),  73      vard;  semble,  Pope  v.  Curie,  2  Atk.  346. 


§  218.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  217 

217.  Rights   of  a   Purchaser  to   Incorporeal   Creations.— If  one  pur- 
chases the  copyright  of  a  picture  with  the  picture,  he  holds  the  picture  free 
from  any  interference,  and  with  the  perfect  right  to  deal  with  it  as  he 
pleases.     If,  however,  he  buys  the  picture  simply  as  a  picture,  or  the  author 
or  artist  has  reserved  the  right  of  reproduction,  the  purchaser  will  then 
have  the  gratification  and  delight  derived  from  its  contemplation,  but  he 
cannot  make  copies  or  engravings  frorn  it,  or  use  it  for  a  different  purpose 
from  that  for  which  the  artist  sold  it; 1  the  purchaser,  in  such  a  case,  is  not 
a  proprietor  within  the  meaning  of  the  copyright  law.     The  author  or  artist 
retains  his  right  to  a  copyright. 

An  architect  or  engineer  should  have  the  same  property  in  his  own  crea- 
tions, whether  they  be  the  drawings  themselves,  an  artistic  design  of  a 
column,  or  a  structure  such  as  a  building,  an  arch,  or  even  a  bridge.  In 
America  it  has  been  held  that  a  draughtsman  or  designer  has  such  property 
in  a  model  or  plan  of  his  own  composition  as  to  be  entitled  to  maintain  an 
action  for  the  unauthorized  use  of  such,  although  no  letters  patent  or  copy- 
right had  been  secured.2 

218,  Copyright  of  Plans  and  Drawings. — Whether  the  plans  or  draw- 
ings of  a  building  may  be  copyrighted  does  not  seem  to  be  perfectly  well 
settled.     In  point  of  justice  and  sound  public  policy,  no  good  reason  exists, 
why  an  architect's  plans  should  not  be  protected  by  copyright.     Copinger, 
in  bis  work  on  Law  of  Copyright,  is  authority  for  the  statement  that  in  the 
English  act  the  word  drawing  includes  architectural  design.3     Drone,  in  his 
work  on  Copyright  Law,  passes  the  subject  by  with  the  simple  statement 
that  plans  are  not  mentioned  in  the  American  statutes,  while  maps  and 
charts  are  included.4     The  word  chart  has  been  held  not  to  include  sheets 
of  paper  exhibiting  tabulated  or  methodically  arranged  information.     The 
courts  distinguished5  between  charts  that  convey  information  of  a  literary 
nature  and  those  that  impart  knowledge  of  geography  or  art.     These  sheets 
could  doubtless  have  been  copyrighted  as  a  book.     A  dressmaker's  chart,  or 
diagram  for  cutting  ladies'  garments,  has  been  held  to  be  a  book,6  and  art 
designs  are  a  subject  of  copyright.7     The  superior  likeness  of  a  dressmaker's 
chart  to  a  book,  when  compared  with  a  collection  of  plates  or  plans  of  an 
architectural  or  engineering  structure  (suppose  them  sun-printed,  to  escape 
the  question  of  reproducing  copies),  will  not  be  apparent  to  most  people, 
and  if  the  former  is  a  subject  of  copyright  as  a  book,  certainly  the  latter 
should  be  equally  so.     Books  of  designs,  simple  reprints  of  architectural 
plans,  with  very  little  text  or  explanations  accompanying  them,  have  been 
copyrighted,  and  are  in  the  possession  of  almost  every  architect  and  engi- 

1  Werokmeister  v.  Springer  Lithograph          3  Copinger 's  Law  of  Copyright  (2d  ed.) 
Co.,  63  Fed.  Rep.  808;  Copinger's  Law  of      389. 

Copyright  388.  4  Drone  on  Law  of  Copyright  174. 

2  N.  E.  Monument  Co.  -M.  Johnson  (Pa.),  6  Taylor  v.  Oilman,  24  Fed.  Rep.  632. 
22    All.  Rep.  974;    semble,  Blunt   v.  Pat-  6  Deury  v.  Ewing,  1  Bond  (U.  8.)  40. 
ten,  2  Paines  (C.  C.  Rep.)  397.  7  Grace  0.  Newman,  L.  R.  19  Eq.  623. 


ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  219. 

neer.  If  ordinary  plans  are  refused,  where  shall  the  line  be  drawn  ?  Will 
the  amount  of  text  accompanying  the  drawing  be  the  test,  or  the  character 
of  the  book,  or  its  form,  the  covers,  the  title  page,  or  the  binding  ?  Will 
the  method  of  reproduction,  whether  from  a  printing-press  or  a  blue-print 
frame,  enter  into  the  case  ?  An  imprinted  book,  which  existed  only  in  the 
manuscript,  has  been  held  the  subject  of  copyright.1  Finally,  will  it  matter 
if  the  book  consist  of  one  sheet  or  several  ?  It  has  been  held  not,  for  a  book 
may  be  on  one  sheet.3 

There  is  no  just  reason  why  an  architect  or  engineer  should  not  be  pro- 
tected by  copyright  as  well  as  an  artist.  His  property  rights  are  certainly 
as  well  defined,  and  in  view  of  other  things  copyrighted,  it  is  difficult  to  see 
how  it  could  be  denied.  The  selfishness  of  the  public  and  the  fact  that  the 
progress  and  growth  of  our  country  may  demand  that  the  industrial  and 
practical  be  not  made  exclusive,  might  be  a  remote  reason  why  it  should  not 
be  given  the  same  protection;  but  this  argument  would  apply  as  well  to 
maps  and  charts,  and  to  patentable  inventions. 

Under  the  United  States  copyright  act  of  1831,  a  photograph  was  not  a 
subject  of  copyright,3  but  a  later  statute  grants  copyright  protection  to 
photographs  and  to  the  negatives  thereof,  and  such  an  act  has  been  held 
not  unconstitutional.4 

A  photographer  has  no  right  to  make  copies  of  a  customer's  photograph 
without  his  permission,5  and  it  may  be  doubted  if  he  can  copyright  it.  A 
private  individual  may  enjoin  the  publication  of  his  portrait  when  a  public 
character  cannot,  unless  the  photograph  has  been  secured  by  some  violation 
•of  confidence  or  breach  of  agreement.  A  person  who  is  one  of  the  foremost 
inventors  of  his  time  has  been  held  a  public  character.5  The  power  of  the 
World's  Columbian  Exposition  to  grant  an  exclusive  privilege  to  make 
stereopticon  views  of  objects  within  the  exposition,  and  to  sell  such  views, 
has  been  held  a  matter  of  grave  doubt.6 

219.  Rights  of  an  Author,  Inventor,  or  Designer  when  in  the  Employ 
of  Another. — In  sympathy  with  and  close  connection  to  this  subject  of  the 
ownership  of  designs  and  artistic  features  created  by  an  architect  or  engi- 
neer are  his  rights  to  plans,  improvements,  and  inventions  made  by  him 
while  an  employee.  If  in  his  contract  of  employment  it  is  agreed,  or  under- 
stood or  may  be  reasonably  implied,  that  the  production  of  his  every  effort, 
mental  as  well  as  physical,  should  be  the  property  of  his  employer,  that  his  de- 
signs, improvements,  and  inventions,  and  all  other  incorporeal  creations 
should  belong  to  his  employer,  then  there  can  be  no  question  but  that  the  em- 

1  Eoberts  t>.  Myers,  23  Law  Rep.  396  ;  Fed.    Rep.    693;    see  cases  of  copyrighted 
but  see  Jewelers'  Merc.  Agcy.  v.  Jewelers'  photograph  cited  in  Springer  Lith.  Co.  v. 
W.  Pub.  Co.,  32  N.  Y.   Supp.  41.  Fnlk  (C.  C.  A.),  59  Fed   Rep.  707. 

2  Drone  on  Copyright  142.  ,     5  Corliss  v.  E.  W.  Walker  Co.  (C.  C.),  64 

3  Wood  v.  Abbott,  5  Bktchf.  (U.  S.)  325.  Fed   Rep.  280. 

4  Sarony  v.  Burrow  Giles  Lith.  Co.,  17  6  Kilburn  v.   Ingersol   (C.    C.),  67  Fed, 
Fed.  Rep.  591;  Schreiber  v.  Thornton,  17  Rep.  46. 


§  219.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  219 

ployer  could  rightfully  claim  them;  but  if  no  such  agreement  has  been  made 
or  can  be  implied,  then  the  employee  is  entitled  to  the  uses  and  benefits  of 
his  creations.1  Such  an  agreement  has  been  held  not  against  public  policy.8 

Architects  are  usually  employed  for  their  ability  to  design  and  create 
features  of  utility  and  decoration,  and  it  is  submitted  that  their  contract  of 
employment  would  generally  include  the  right  to  the  use,  at  least,  of  any 
features  of  design,  decoration,  or  arrangement  that  they  might  create;  but  it 
would  not  include  any  new  method  of  construction,  or  a  new  material,  or  a 
new  process  for  the  manufacture  of  it. 

It  has  been  held  that  if  a  company  employ  a  chemist  to  work  with  its  mate- 
rials as  a  chemical  expert,  in  order  to  develop  new  products  and  processes  for 
its  benefit,  it  acquires  no  right  to  the  chemist's  discoveries  made  during  such 
employment,  but  only  a  license  to  use  them ; 3  but  if  an  employee  invents 
flavoring  compounds  with  materials  supplied  by  the  firm,  and  it  is  the  inten- 
tion of  all  the  parties  that  the  processes  by  which  the  compounds  are  pre- 
pared shall  belong  to  the  firm,  and  be  trade  secrets,  the  firm  becomes  the 
owner  of  the  processes,  though  no  assignment  thereof  is  made  by  the  inventor 
to  the  firm.4  If  the  employee  has  entered  the  receipts  and  processes  in  a 
book  of  his  own  he  is  entitled  to  keep  it,  though  it  seems  the  employer  is 
entitled  to  a  copy.  A  color-mixer  in  a  carpet  manufactory,  without  the 
knowledge  of  his  employers,  who  has  entered  the  receipts  in  his  own  instead 
of  his  employers'  color-books,  and,  on  the  employee's  discharge,  his  employ- 
ers, believing  the  books  their  own,  refused  to  let  the  employee  take  them 
away,  it  was  held  that  the  jury  should  be  instructed,  in  an  action  by  the  em- 
ployee for  the  detention,  that  the  value  of  the  receipts  could  not  be  consid- 
ered in  estimating  the  damages,  and  that,  in  considering  violence  in  the 
detention  as  an  element  of  damages,  they  must  consider  the  negligent  con- 
duct of  the  employee,  and  that  his  employers  were  led  thereby  to  believe 
that  he  was  carrying  away  their  own  books.6  The  employer  has  a  right  to  the 
continued  use,  in  his  own  business,  of  recipes  for  mixing  colors,  prepared 
by  an  employee  whose  duties  require  him  to  prepare  mixtures  of  colors  which 
will  reproduce  the  shades  indicated  by  designs  submitted  to  him,  and  to 
enter  the  receipes  in  a  book  furnished  for  that  purpose,  and  which  are  neces- 
sary for  the  immediate  manufacture  of  the  carpet  designed,  and  its  subsequent 
reproduction.5  The  employer  has  recovered  such  receipt-books  in  trover 
from  the  employee.8 

An  owner  of  a  process  or  invention  for  manufacturing  an  article,  which 
was  kept  secret  from  all  but  confidential  employees,  may  restrain  former 

1  Cases  collected  in  4  Amer.  &  Eng.  Ency.  Supp.  190. 

Law    178;    Smith's    Master    and    Servant  4  Baldwin  v.  Von  Micheroux  (Sup.),  25 

166-7,  and  English  cases  cited;  see  Pape  v.  N.  Y.  Supp.  857;  accord  Dempsey  v.  Dob- 

Lathrop  (Ind.).  46  N.  E.  Rep.  154  [1897].  son  (Pa.),  34  Atl.  Rep.  459. 

2Hulse  v.  Machine  Co.  (C.   C.  A.),  65  5  Dempsey  v.  Dobson  (Pa.  Sup.),  34  Atl. 

Fed.  Rep.  864.  Rep.  459. 

3  Clark  v.  Fernoline  Chem.  Co.,  5  N.  Y.  6  Makepeace  v.  Jackson,  4  Taunt.  770. 


220     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§220. 

employees  from  disclosing,  or  using  in  a  rival  establishment,  their  knowledge 
thereof, acquired  while  occupying  such  confidential  relation;  and  it  is  imma- 
terial that  there  was  no  written  contract  between  them,  or  that  at  the  com- 
mencement of  the  employment  the  employees  were  minors,  and  performed 
comparatively  unimportant  duties.1 

The  mere  fact  of  the  employment  does  not  give  the  title  to  a  manuscript 
to  the  publisher.  Whether  one  who  is  paid  to  write  an  article  for  a  periodi- 
cal, magazine,  or  cyclopedia  can  have  copyright  in  the  article  so  as  to  prevent 
the  publisher  from  using  it  in  book  form  or  otherwise  than  for  what  it  was 
written,  depends  also  upon  the  agreement  between  the  parties  expressed  or 
implied.2 

220.  Things  Made  or  Created  Outside  of  Office  Hours. — What  an  em- 
ployee writes  or  prepares  outside  of  office  hours  or  independently  of  the 
duties  for  which  he  is  employed  and  paid,  belongs  to  himself  individually.3 
A  contract  to  give  one's  whole  time,  as  a  draughtsman  to  the  interests  of  his 
employer,  an  architect,  has  been  held  not  to  be  broken  by  doing  a  little  work 
on  holidays  and  at  night  for  other  parties,  and,  it  may  be  added,  for  himself, 
so  long  as  such  work  does  not  result  in  damage  to  the  employer.4 

221.  Creations  Made  from  Materials  Collected  while  in  Another's  Ser- 
vice.— xl  draughtsman  or  engraver  in  the  government  employ  can  have  no- 
copyright  in  a  chart  prepared  for  the  government;5  and  it  was  so  held  of  an 
artist  that  accompanied  a  government  expedition.8     An  assistant  in  an  engi- 
neer's office  who  executes  and  completes  a  map  in  conformity  with  the 
general  design  furnished  by  his  employer,  who  made  rough  sketches  and 
supplied  newspaper  maps,  official  reports,  etc.,  can  have  no  copyright  in  the 
map.7 

If  the  changes  and  improvements  in  a  map  are  material,  it  is  a  new  map, 
and  must  be  copyrighted  before  it  is  published,  in  order  to  protect  it  from 
piracy.8 

222.  New  Creation  Made  from  Materials  Collected  by  Others. — It  seems 
that  in  making  a  map  an  engineer  may  take  advantage  of  all  prior  publica- 
tions, but  he  must  not  make  a  mere  copy  nor  a  servile  imitation.     He  must 
bestow  mental  labor  upon  what  he  takes  from  other  maps  and  charts,  and 
subject  it  to  such  revision  and  correction  as  to  produce  an  original  result. 
He  should  not  deny  the  use  made  of  preceding  works  and  the  changes  must 
be  material,  and  not  merely  colorable.     Whether  the  changes  are  merely 

1  Little  v.  Gallus  (Sup.),  38  N.  Y.  Supp.       C.  B.  427. 

487,  1014;    Peabody  <o.  Norfolk,  98  Ma«s.  4  Hermann  v.  Littlefield  (Cal.),  42  Pac. 

452;   Morrison   <o.    Moat,    9   Hare  255;    10  Rep.  443. 

Amer.  &  Eng.  Eucy.  Law  949.  5  Copyright,  7  Opinion  Att'y-Gen'l  656. 

2  Sweet  v.  Benning,  16  C.  B.  459;  Bishop  •  Heine  v.  Appleton,  4  Blatchf.  (U.  8.) 
of  Hereford  v.  Griffin,  16  Sim.  190.  125;  Com.  v.  Desilver,  3  Pliila.  (Pa.)  31. 

8  Copinger  on  Copyright  127;  Drone  on  7  Stannard   v.  Harrison,  24  Law  Times 

Copyright  259;    Gill  v.  United   States,  16  570;  Drone  on  Copyright  254. 

Sup.  Ct.  Rep.  322;   as  to  suggestions  by  8  Drone  on  Copyright  145. 
employer,  see  Sheppard  u.   Conquest,   17 


§  223.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  221 

colorable,  and  the  new  work  a  mere  servile  imitation  is  a  question  for  the 
jury  in  each  case.1  The  change  of  a  plain  map  to  a  mercator  projection  has 
been  held  not  a  servile  imitation,  but  an  original  work.  But  the  publication 
of  a  map  at  a  smaller  scale  than  the  original  was  held  a  piracy.''  A  chart  of 
township  boundaries  is  a  subject  for  copyright.3 

The  natural  objects  from  which  a  chart  is  made,  being  open  to  the  exam- 
ination of  all,  a  copyright  cannot  subsist  as  to  the  general  subject.  A  right 
in  such  a  subject  is  violated  only  when  copies  are  made  from  the  chart  of 
him  who  has  secured  the  copyright,  and  thereby  avails  himself  of  his  labor 
and  skill.4  The  results  of  the  labor  of  a  draughtsman  while  in  the  service  of 
the  commonwealth,  working  at  her  cost,  belong  to  the  commonwealth,  and 
the  publication  of  a  map  made  from  materials  collected  while  in  such  service 
will  be  restrained  by  injunction.5  A  tradesman  who  employs  another  for 
pay,  to  complete  a  book  of  monumental  designs  for  him  is  entitled  to  copy- 
right in  the  book.  The  employee  cannot  publish  designs  copied  from  it.8 

223.  Employees  Right  to  His  Inventions.— Mechanical,  civil  and  electrical 
engineers,  chemists  and  mechanics,  are  inventors  by  trade.  Poverty  fre- 
quently requires  them  to  accept  employment  under  masters,  less  capable  and 
less  deserving,  .who  profit  from  their  labors  and  often  appropriate  the  fruit 
of  their  inventive  genius,  sometimes  rightfully,  and  frequently  without  any 
legal  right  whatever.  In  the  absence  of  an  express  agreement  that  the 
inventions  and  improvements  made  by  the  employee  shall  belong  to  the  em- 
ployer, the  latter  can  claim  no  rights  to  such  inventions  of  the  employee.7 

Under  Eev.  St.  §  4929,  which  authorized  the  issuance  of  a  design  patent 
to  any  person  who,  "  by  his  own  industry,  genius,  efforts,  and  expense,  has 
invented,"  etc.,  the  use  of  the  word  "expense"  is  not  limited  to  mere  dis- 
bursement of  money,  and  does  not  prevent  the  granting  of  a  patent  to  one 
who  invents  a  design  while  in  the  employ  of  another,  especially  where  it  does 
not  appear  that  any  "expense"  was  necessary  in  producing  the  design.8  It 
does  not  matter  that  the  improvements  are  in  machines  with  which  he  is 
connected  in  his  service.9  The  employer  has  no  right  to  inventions  made 
by  the  employee  after  his  term  of  employment  has  expired.10  If  an  engineer 
has  been  hired  expressly  to  invent,  an  equitable  title  to  his  inventions  will 

1  Copinger  on  Copyright  (1st  ed.),  90;  McWilliams  Mfg.  Co.  y.  Blundell,  11  Fed. 
Say  re  v.  Moore,  1  East  361.  Rep.  419;  Niagara  Radiator  Co.  v.  Meyers 

2  3  Amer.  &  Eng.  Ency.  Law  139-140.  (Sup.),  40N.Y.  Supp.  572;  Green  o.Willard 

3  Farmer  v.  Calvert,  etc.,  Co.,  5  Arn.  L.  Barrel  Co.,  1  Mo    App.  202;  but  see  some 
T.  Rep.  174.  early  English  cases;  Bloxam  v  Elsee.  1  C. 

4  Blunt  v.  Patten,  2   Paine  397  [1828];  &  P.    558,    before  service  began;    Hill   v. 
San  born   Map  &  Pub.  Co.  v.  Dakin  Pub.  Thompson,  8  Taunton  395;  Makepeace  v. 
Co.,  39  Fed.  Rep.  266.  Jackson,    4    Taunton   770,    color-printers' 

5  Commonwealth  v.  Desilver,  3  Philadel-  book  of  receipts  recovered  by  employer  in 
phia  31  [1858].  trover  from  employee. 

6  Grace  v.  Newman,  L.  R.  19  Eq.  Cas.  8  Matthews  Mfg.  Co.  v.  Trenton  Lamp 
623  [1875].  Co.  (C.  C.),  73  Fed.  Rep.  212. 

7  Smith's  Master  and  Servant  (4th  ed.),  9  Gill  v.  United  States,  16  Sup.  Ct.  Rep. 
164;  Hapgoort  i\  Hewitt,    119  U.  S.  226;  322. 

Gill  «.  United  States,  16  Sup.  Ct.  Rep.  322;          10  Appleton  «.  Bacon,  2  Black  (U.  S.)  699. 


222       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§224. 

vest  in  his  employer; '  and  an  employee  may  make  an  assignment  of  inven- 
tions that  are  yet  in  embryo  in  his  mind,  or  even  make  a  general  sale  of  the 
inventive  power  of  his  mind.2 

Of  course  nice  questions  arise  when  an  engineer  is  working  with  or  under 
the  eye  of  his  employer,  who  may  constantly  make  suggestions,  frivolous  and 
worthless  perhaps,  but  which,  when  related  in  court,  may  be  made  to  embody 
the  whole  invention  and  the  engineer  to  appear  as  a  subordinate  under  the 
direction  and  supervision  of  a  natural  born  genius,  the  employer.  There 
have  been  employers  who  have  honestly  won  the  name  of  inventor,  and  when 
it  is  proved,  they  are  the  more  deserving  of  the  glory  and  reward,  having 
made  the  invention  without  the  aid  of  the  technical  training  which  every 
engineer  is  supposed  to  have  had.  Such  cases  are  the  exception  in  these  days. 

When  it  is  proved  that  the  employer  has  made  a  new  discovery  and  has 
hired  engineers  and  agents  to  assist  him  in  carrying  out  that  principle,  and 
they,  in.  the  course  of  the  experiments  arising  from  that  employment,  have 
made  valuable  discoveries  accessory  to  the  main  principle,  and  tending  to 
carry  it  out  in  a  better  manner,  such  improvements  are  the  property  of  the 
inventor  of  the  original  principle,  and  may  be  embodied  in  his  patent.3 

224.  What  is  Invention,  and  Who  is  the  Inventor  ? — "  Invention  is  the 
work  of  the  brain  and  not  of  the  hands.  If  the  conception  be  practically 
complete,  the  artisan  who  gives  it  reflex  and  embodiment  in  a  machine  is  no- 
more  the  inventor  than  the  -tools  with  which  he  works.  Both  are  instru- 
ments in  the  hands  of  him  who  set  them  in  motion,  and  prescribes  the  work 
to  be  done.  Mere  mechanical  skill  can  never  rise  to  the  sphere  of  invention. 
The  latter  involves  higher  thought,  and  involves  and  brings  into  activity  a 
different  faculty.  Their  domains  are  distinct.  The  line  which  separates 
them  is  sometimes  difficult  to  trace;  nevertheless,  in  the  eye  of  the  law,  it 
always  subsists.  The  mechanic  may  greatly  aid  the  inventor,  but  he  cannot 
usurp  his  place.  As  long  as  the  root  of  the  original  conception  remains  in 
its  completeness,  the  outgrowth,  whatever  shape  it  may  take,  belongs  to  him 
with  whom  the  conception  originated."  So  where  an  employer  had  drawn  a 
design  of  an  engine  in  the  sand,  and  directed  an  employee  or  assistant  to 
prepare  the  drawings  and  the  engine  was  built,  it  was  held  that  the  one  who 
drew  the  original  design  in  the  sand  was  the  inventor.4  To  claim  the  inven- 
tion the  employee  must  discover  the  principle  of  the  machine  or  invent  the 
important  movements  of  it.6 

The  law  has  been  very  clearly  laid  down  by  Mr.  Justice  Clifford  in  the 
following  words:  "  Persons  employed,  as  much  as  employers,  are  entitled  to 
their  own  independent  inventions;  but  where  the  employer  has  conceived 

1  Continental  Wind  Mill  Co.  v.  Empire          3  Per  Earle,  J.,  Allen  v.  Rawson,  1  C.  B. 
Wind  Mill  Co.,   8  Blatchf.   (U.   S.)   295;      567  [1845]. 

Joliet  Mfg.  Co.  t>.  Dice,  109  111.  649.  4  Blandy  v.  Griffith,  3  Fish.  615  [18691 

2  Cases  in  18  Amer.  &  Eng.  Ency.  Law          5  Bloxam  *>,  Elsee     1   Car.   &  P.  567; 
135;  Hulsefl.  Bonsack  Mach.  Co.  (C.  C  A .),       Allen  «.  Rawson,  1  Man.  G.  &  S.  551. 

6">  Fed.  Rep.  864. 


§  224.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  223 

the  plan  of  invention,  and  is  engaged  in  experiments  to  perfect  it,  no  sug- 
gestions from  an  employee,  not  amounting  to  a  new  method  or  arrangement 
which  in  itself  is  a  complete  invention,  is  sufficient  to  deprive  the  employer 
of  the  exclusive  property  in  the  perfected  improvement;  but  where  the  sug- 
gestions go  to  make  up  a  complete  and  perfect  machine,  embracing  the  sub- 
stance of  all  that  is  embodied  in  the  patent  subsequently  issued  to  the  party 
to  whom  the  suggestions  were  made,  the  patent  is  invalid,  because  the  real 
invention  or  discovery  belongs  to  the  employee.  If  the  suggestions  or  im- 
provements made  by  the  employee  are  ancillary  to  the  plan  and  preconceived 
idea  of  the  employer,  such  suggested  improvements  are  in  general  to  be 
regarded  as  the  -property  of  the  party  who  discovered  the  original  improved 
principle  and  may  be  embodied  in  his  patent  as  a  part  of  his  invention* 
Suggestions  from  an  employee  made  during  the  progress  of  experiments,  in 
order  that  they  may  be  sufficient  to  defeat  a  patent,  must  have  embraced  the 
plan  of  the  improvement  and  must  have  furnished  such  information  to  the. 
person  to  whom  the  communication  was  made,  that  it  would  have  enabled 
an  ordinary  mechanic,  without  the  exercise  of  any  ingenuity  and  special 
skill  on  his  part,  to  construct  and  put  the  improvement  in  successful  opera- 
tion/' 1  And  by  Chief  Justice  Tindal  in  the  following  language:  "  It  would 
be  difficult  to  define  how  far  the  suggestions  of  a  workman  [engineer]  em- 
ployed in  the  construction  of  a  machine  are  to  be  considered  as  distinct 
inventions  by  him,  so  as  to  avoid  a  patent  incorporating  them,  taken  out  by 
the  employer.  Each  case  must  depend  upon  its  own  merits,  but  when  the 
principle  and  object  of  the  invention  are  complete  without  it,  it  is  too  much 
that  a  suggestion  of  a  workman  employed  in  the  course  of  the  experiments> 
of  something  calculated  more  easily  to  carry  into  effect  the  conception  of  the 
inventor,  should  render  the  whole  patent  void."  a 

It  is  doubtful  if  an  employer  can  claim  or  defend  an  invention  first  con- 
ceived and  designed  by  an  employee,  even  though  the  employee  does, 
acquiesce  in  his  employer's  application  and  permits  him  to  go  to  the  expense 
and  trouble  of  obtaining  a  patent.  When  it  is  considered  that  the  right  to 
the  patent  is  vested  in  the  inventor,  who  must  himself  take  the  steps- 
requisite  to  the  grant  of  the  patent,  and  that  it  is  made  necessary  to  the 
grantor  a  patent  to  an  assignee  that  an  assignment  should  be  previously 
recorded  and  that  the  inventor  should  take  oath  to  the  specification,  it  can 
scarcely  be  doubted  that,  where  the  real  author  of  the  invention  is  any  other 
person  than  the  patentee,  it  is  necessary  that  some  contract  capable  of 
operating  as  an  assignment  should  precede  the  issuing  of  the  patent.3 

Such  a  case  is  to  be  distinguished  from  that  of  a  workman  who  is  em- 
ployed and  paid  by  one  who  has  conceived  the  principle  and  plan  of  an 
invention,  and  who  relies  on  the  ingenuity  of  another  to  enable  him  to  per- 


1  Agawam  Co.  v.  Jordan,  7  Wall  602.  3  See  U.  S.  Rev.  Stat.    4888  ;    Hogg 

2  Allen  v.  Rawson,  1  Man.  G.  &  S.  551.         Emerson,  6  How.  (U.  S.)  437. 


224        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  225. 

feet  the  details  and  realize  his  conceptions.  If  tinder  a  plea  of  the  general 
issue,  evidence  should  be  offered  that  the  patentee  was  not,  but  that  a  work- 
man was,  the  real  inventor,  could  the  action  be  maintained  without  showing 
a  written  assignment  or  a  written  contract  that  would  operate  as  an  assign- 
ment, even  if  the  real  inventor  had  acquiesced  in  the  patentee's  application.1 
225.  Instances  of  Invention  between  Employer  and  Employee. — A  case  in 
point  was  one  where  a  husband  was  experimenting  with  turkeys7  feathers, 
seeking  to  make  them  pliable  and  suitable  for  dusters;  his  wife  suggested 
that  he  split  them,  which  he  did,  and  which  was  practically  the  solution  of 
the  whole  difficulty;  it  was  held  that  lie  was  entitled  to  the  patent.  This 
case,  however,  has  been  criticised  by  Mr.  Meriam  in  his  book  on  Patent- 
ability of  Inventions,  p.  713,  where  he  expresses  the  opinion  that  the  wife 
was  the  true  inventor,  or  perhaps  the  two  were  joint  inventors.2 

It  has  been  held  that  an  engineer  may  recover  additional  compensation 
for  extra  skill  arid  labor  bestowed  in  designing  and  making  plans,  if  such 
extra  work  was  not  embraced  in  the  original  contract  of  employment  nor 
in  the  duties  thereby  imposed.  Thus  when  a  contractor  employs  a  person 
to  superintend  the  construction  of  an  engineering  structure,  and  requests 
him  to  use  certain  ideas  and  means  for  its  rapid  and  economical  construc- 
tion, which  the  employee  .had  previously  designed  ai.  1  planned  even  though 
at  the  contractor's  request,  the  contractor  is  liable  to  the  employee  for  the 
preparation  of  the  plans  and  the  extra  time  devoted  during  his  employ- 
ment to  perfect  and  complete  them.3  * 

It  has  been  held  that  an  employee,  paid  by  salary  or  wages,  who  devises 
an  improved  method  of  doing  his  work,  using  the  property  or  labor  of  his 
employer  to  put  his  invention  into  practical  form,  and  assenting  to  the  use 
of  such  improvements  by  his  employer,  cannot  by  taking  a  patent  upon 
such  invention  recover  a  royalty  or  other  compensation  for  such  use.  The 
fact  that  the  employee  made  the  invention  out  of  working  hours,  and  that 
he  used  neither  the  property  of  his  employer,  the  government,  nor  the 
services  of  its  employees  in  conceiving,  developing,  or  perfecting  the  inven- 
tions, is  immaterial,  if  the  cost  of  preparing  the  patterns  and  working  draw- 
ings of  the  machines,  as  well  as  the  cost  of  constructing  the  machines  that 
were  made  in  putting  the  invention  into  practical  use,  was  borne  by  the 
government,  the  work  being  also  done  under  the  immediate  supervision  of 
the  employee.4 

It  is  submitted  that  the  rights  of  the  employer  in  the  improvements 
made  amounts  to  a  mere  license,  and  that  the  inventor  could  enjoin  any 
other  party  from  making  use  of  his  inventions. 

1  Allen  v.  Rawson,  1  Man  G.  &  S.  551.  3  Dull  v.  Bramhall,  49  111.  364  [1868]. 

2  National  Feather-Duster  Co.  D.  Hib-          4  Gill  v.  United  States,  16  Sup.  Ct.  Rep. 
bard,  9  Fed.  Rep.  558  [1881J.  322. 

*See  Sec.  210,  supra. 


CHAPTER  X. 

LIABILITY  OF  ENGINEER  OR  ARCHITECT  AS  A  PROFESSIONAL  MAN. 
MUST  BE   COMPETENT,  SKILLFUL,  AND   MUST   EXERCISE   DUE   CARE. 

226.  Engineer's  or  Architect's  Employment  Similar  to  that  of  Other 
Professional  Men.— An  engineer's  or  architect's  employment  is  one  which 
requires  care  and  skill,  and  a  contract  for  his  services  includes  a  reason- 
able degree  of  skill  and  knowledge  of  his  profession.      He   must   prac- 
tice under  the  same  rules  and  principles  that  apply  to  attorneys  and  phy- 
sicians and  to  other  professional  men.     His  liability  must,  of  course,  be 
determined  by  his  contract  of  employment,  which,  as  before  stated,  is  sel- 
dom set  forth  with  any  degree  of  certainty.     Notwithstanding,  if  a  person 
holds  himself  out  to  the  public  as  possessing  professional,  peculiar,  or  com- 
petent skill,  or  offers  his  services  in  a  professional  capacity,  which  from  its 
nature  implies  the  possession  of  such  skill,  he  will  be  liable  to  those  who 
employ  or  rely  upon  him  in  that  capacity  and  upon  that  supposition  for  the 
exercise  of  such  skill.1     The  fact  that  the  services  are  gratuitous  does  not 
relieve  him;  he  is  liable  to  the  same  extent  as  though  the  services  were  ren- 
dered for  a  reward.8 

227.  Undertaking  of  a  Person  Who  Offers  His  Services  in  a  Professional 
Capacity. — Judge  Cooley  in  his  book  on  Torts  gives  the  law  as  laid  down  by 
the  New  Hampshire  courts,  that  a  person  who  offers  his  services  to  the 
community  generally  or  to  an  individual  for  employment  in  any  professional 
capacity  as  a  person  of  skill,  contracts  with  his  employer:  (1)   "That  he 
possesses  that  reasonable  degree  of  learning,  skill,  and  experience  which  is 
ordinarily  possessed  by  the  professors  of  the  same  art  or  science,  and  which 
is  ordinarily  regarded  by  the  community  and  by  those  conversant  with  the 
employment  as  necessary  and  sufficient  to  qualify  him  to  engage  in  such  busi- 
ness";3 (2)  "that  he  will  use  reasonable  and  ordinary  care  and  diligence 
in  the  exertion  of  his  skill  and  the  application  of  his  knowledge  to  accom- 
plish the  purpose  for  which  he  is  employed;  he  does  not  undertake  for 
extraordinary  care  or  extraordinary  diligence  any  more  than  he  does  for 
uncommon  skill";4  (3)  "in  stipulating  to  exert  their  skill  and  apply  their 

1  Harmer  «.  Cornelius,  5  C.  B.  (N.  S.)          8  Cooley  on  Torts  649. 

236  [18581.  4  Leiguton    v.   Sargent,   27  N.   H.   460 

2  Stmble,  People  v.  Campbell,  82  N.  Y.      [1853]. 
247  [1880]. 

225 


226     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  228. 

diligence  and  care,  the  medical  and  other  professional  men  contract  to  use 
their  best  judgment/' * 

This  is  believed  to  be  an  accurate  statement  of  the  implied  promise. 
The  practitioner  must  possess  at  least  the  average  degree  of  learning  and 
skill  in  his  profession  prevailing  in  the  part  of  the  country  in  which  his 
services  are  offered  to  the  public,  and  if  he  exercises  that  learning  and  skill 
with  reasonable  care  and  fidelity,  he  discharges  his  legal  duty.2 

228.  That  the  Employee  Possesses  Skill  is  Implied  from  the  Undertaking 
to  Act. — The  same  rule  applies   to  any  other  case   requiring   special  or 
peculiar  skill.     If  an  agent  undertakes,  for  a  reward,  the  performance  of 
such  a  duty,  without  possessing  a  reasonable  and  competent  degree  of  skill,. 
in  which  fact  the  principal  is  ignorant,  he  will  be  liable  to  the  principal  for 
the  loss  or  injury   resulting  therefrom.3     If,  however,  the  principal  had 
notice  or  knowledge  of  the  agent's  incapacity  at  the  time  of  the  employ- 
ment, the  agent  will  not  be  liable.4     No  warranty  of  skill  will  be  implied 
when  the  principal  knows  that  no  such  skill  is  possessed.     If  he  sees  fit  to 
employ  an  unskilled  person  he  must  be  content  with  unskilled  work;  and 
the  same  is  true  where  the  agent  is  employed  out  of  the  line  of  his  employ- 
ment.    If  the  principal  sees  fit  to  employ  an  auctioneer  to  conduct  his  case 
in  court,  or  a  surveyor  to  do  his  engineering,  he  cannot  complain  of  his 
attorney's  want  of  skill,  unless  the  latter  expressly  warranted  that  he  pos- 
sessed it.6 

229.  Absolute  Accuracy  or  Success  Not  a  Test  of  Skill  or  Capacity  of  a 
Man   in  His  Professional  Capacity. — Absolute  correctness  in   performing 
engineering  operations  cannot  be   made   the  test  of   the  amount   of  skill 
required.6     Without  a  special  contract,  an  architect  or  engineer  does  not 
warrant  the  perfection  of  his  plans  nor  of  the  structure,  nor  its  safety,  nor  its 
durability,  any  more  than  a  physician  or  surgeon  warrants  a  cure,  or  a 
lawyer  guarantees  the  winning  of  a  case.7     One  who  undertakes  to  make  a 
map  of  a  certain  locality  must  furnish  a  map  of  substantial  accuracy,  but  in 
the  absence  of  a  guaranty,  it  need  not,  it  seems,  be  absolutely  accurate.8 

In  the  absence  of  an  express  agreement  a  physician  does  not  even  insure 

1  Cooley  on  Torts  649;  Leighton  0.  Sar-  (Tenn.)  452;  McDonald  v.  Simpson,  4  Ark. 
gent,  27  JN".  H.  460  [1853];  Peck  v.  Hutch-  ~23;  Wilson  v.   Brett,  11  M.   &  W.   113; 
inson  (Iowa),  55  N.  W.  Rep.  511;  Hewitt  Shipman  v.  State,   43  Wis.    381;   Money- 
v.  Eiseubart  (Neb.),  55  N.  W.  Rep.  252.  penny  v.  Hartland,  1.  Car.  &  P   352;  s.  c., 

2  Wilson  v.  Brett,  11  M.  &  W.  113;  Stan-  2  C.  &  P.  378;  Harmer  v.  Cornelius,  5  C. 
ton  v.  Bell,  2  Hawks  (N.  C.)  145;  Varuum  B.    (N.    S.)   236  ;   McFarland   v.   McClees 
v.  Martin,  15  Pick.  (Mass.)  440;  Stimpsou  (Penn.)   5  Atl   Rep.  50. 

v.  Sprague,  6  Greenl.  (Me.)  470;  Crooker  4  Story   on    Bailment.    §    435;    Felt    v. 

v.  Hutchinson,  1  Vt.  73;  Holmes  v.  Peck,  School  District,  24  Vt.  297. 

1   R.   I.   242;  Graunis  v.  Branden,  5  Day  5  Meechem  on  Agency,  §  496. 

(Conn.)  260;  Howard  v.    Grover,   28  Me.  6  McCarthy  v.  Bauer,  3  Kan.  237. 

97;  Ayers  v.  Russell,  50  Hun  283  [1888],  7  Shipman  v.  State,  43  Wis.  381;  Leigh- 

where  a  patient  was  adjudged  insane;  and  ton  v.  Sargent,  27  N.  H.  460  [1853]  ;  and 

see  also  Lange  v.   Benedict,  73  N.  Y.  35,  see  Small  v.  Howard,  128  Mass.  131  [1880]. 

and  cases  cited.  8  Munsell    v.    Baldwin,    56    Conn.    522 

8  Kirtland    «,     Montgomery,    1    Swan.  [1888]. 


§  231.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  227' 

that  he  will  benefit  his  patient.1  He  is  not  responsible  for  want  of  success,, 
unless  it  is  proved  to  result  from  want  of  ordinary  skill,  or  want  of  ordinary 
care  and  attention;  nor  is  he  presumed  to  engage  for  extraordinary  skill  or 
for  extraordinary  diligence  and  care;  nor  is  he  responsible  for  errors  of  judg- 
ment or  mere  mistakes  in  matters  of  reasonable  doubt  and  uncertainty.''  He 
is  required  to  exercise  only  that  degree  of  skill  which  is  ordinarily  possessed 
by  members  of  his  profession.3  He  is  charged  with  the  consequences  of 
mere  errors  only  when  such  errors  could  not  have  arisen,  except  from  want 
of  reasonable  skill  and  diligence.4  To  recover  for  services  he  need  riot  prove 
their  value  to  the  patient,  but  only  the  ordinary  and  reasonable  value  of  like- 
services.1  If  a  man  assumes  an  unusually  difficult  or  hazardous  undertaking; 
he  is  thereby  required  to  exercise  extraordinary  care,  diligence,  and  skill.  It 
was  so  held  of  a  contractor  in  the  performance  of  his  work,  and  should  apply 
with  equal  propriety  to  a  professional  man,  as  an  engineer,  or  an  architect.6' 
230.  Determination  of  Skill  Possessed  or  Want  of  Skill. — How  this 
reasonable  degree  of  skill  is  to  be  determined  is  a  question  of  importance. 
There  are  cases  where  its  presence  or  absence  is  so  palpable  and  unquestion- 
able that  the  court  may  so  declare  as  a  matter  of  law.  In  cases  where  the  facts 
are  controverted,  and  the  existence  or  non-existence  of  certain  of  them  may 
fairly  be  presumed  to  affect  the  mind  in  any  given  exigency,  the  whole  ques- 
tion of  the  existence  of  the  facts,  and  the  conclusions  to  be  deduced  from*, 
them  is  to  be  determined  by  the  jury  or  other  tribunal,  by  reference  to  all 
the  circumstances  of  the  case,  including  the  subject-matter  and  other  objects- 
of  the  agency,  and  the  known  character,  qualifications,  and  relations  of  the 
parties.8  The  party  asserting  the  negligence  of  the  architect,  or  his  want  of 
skill,  must  prove  it.7 

231.  Engineer's  or  Architect's  Undertaking  when  He  Accepts  or  Solicits 
an  Engagement. — A  professional  engineer  or  architect  undertakes  and  agrees 
then  to  perform  several  conditions  when  he  accepts  an  engagement,  viz. :  (1) 
That  he  has  the  requisite  skill  and  knowledge;  (2)  that  he  will  use  reason- 
able care  and  diligence  in  the  exercise  of  his  skill  and  the  application  of  his; 
knowledge;  (3)  that  he  will  use  his  best  judgment;  (4)  and,  there  should 
be  added,  the  obligation  which  rests  upon  every  person  occupying  a  position) 
of  trust,  as  that  of  an  architect  or  engineer,  that  he  will  be  honest.  Liability 
will  attach  for  a  failure  to  perform  any  one  of  these  conditions  if  any  injury 
result  from  such  neglect  or  failure,  and  these  conditions  need  not  bethesub- 

1  Styles  v.  Tyler,  64  Conn.  432.  6  Pennsylvania  R.  R.    Co.  v.  Ogier.  3i> 

•Leighton  v.    Sargent,    27    N.    H.    460  Pa.    St.    60;    Hubert  v.  Aitken,  15    Daly 

[18531.  237;  Gill  v.  Midleton,  105 Mass.  477;  Eddy 

3  Utley'u.  Burns,  70  111.  162  [1873];  in  his  v.  Livingston,    35  Mo.  493;  Grant  v.  Lud- 

locality,  Whitesell  v.  Hill  (Iowa),  66  N.W.  low,  8  Ohio  St.  1;  Meechem  on  Agency,  & 

Rep.  894;  Chapman  v.  Walton,  lOBing.  63.  500;  but  see  Vigeant  v.  Scully,  20  111.  App. 

4Leighton   v.    Sargent,    27    N.    H.    460  437. 

[1853];  Shipman  v.  State,  43  Wis.  381.  7  Gillmau  «.  Stevens,  54  How.  Pr.  (N.  Y.> 

5  Mayor   v.   Bailey,  3  Denio  433;  semble,  207. 
Judge  Cooley,  in  49  Mich.  153. 


228     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  232. 

ject  of  a  special  agreement.  If  a  person  solicits  employment  in  a  particular 
line  of  work,  the  act  of  solicitation  is  an  assertion  by  the  person  seeking 
employment  that  he  is  competent  to  discharge  all  its  ordinary  duties.  .  The 
public  profession  of  an  art  is  a  representation  and  undertaking  to  all  the 
world  that  the  professor  possesses  the  requisite  skill  and  ability.2  If  lie 
engages  in  a  certain  business,  as  surveying,  engineering,  or  architecture,  the 
law  will  imply  that  he  assumes  to  possess  the  requisite  knowledge  and  skill, 
and  that  he  undertakes  to  use  due  and  ordinary  care  in  the  performance  of 
his  duty;  and  for  a  failure  in  either  of  these  respects,  resulting  in  damages 
to  the  party  to  whom  he  owes  the  obligations,  he  is  liable  for  the  injury.3 

232.  Professional  Man  must  Possess  Ordinary  Skill  and  Exercise  Ordi- 
nary Care. — He  must  exercise  the  ordinary  amount  of   skill  possessed  by 
those  of  the  same  profession.    It  is  immaterial  how  high  his  standing  may  be, 
if  he  has  the  skill  and  does  not  apply  it,  he  is  guilty  of  neglect;  if  he  does 
not  have  it,  then  he  is  liable  for  the  want  of  it.     Two  questions  may  present 
themselves:  First,  whether  the  practitioner  possesses  the  ordinary  skill  of 
persons  acting  as  engineer  and  architects,  and,  secondly,  if  he  did,  whether  he 
was  negligent  in  the  application  of  his  skill.     "Whether  he  possesses  greater 
skill,  or  has  been  successful  in  applying  it  in  other  cases  is  wholly  immate- 
rial.    He  cannot  show  that  he  was  generally  reputed  to  possess  a  high  degree 
of  skill  in  his  profession,  when  the  employer  does  not  allege  or  offer  to  prove 
that  he  lacked  ordinary  skill.4 

If  he  does  not  adopt  the  established  mode  of  treatment,  and  adopts  one 
that  proves  to  be  injurious,  evidence  of  skill  or  reputation  for  skill  is  imma- 
terial, except  to  show  what  the  law  presumes,  viz.,  that  he  possesses  the  ordi- 
nary degree  of  skill.  It  is  of  no  consequence  how  much  skill  he  may  possess, 
if  he  has  demonstrated  a  want  of  it  in  the  case  in  question.  The  failure  to 
use  skill  may  be  negligence,  but  when  the  methods  adopted  are  not  in  accord- 
ance with  the  established  practice  of  his  profession,  but  is  positively  bad  and 
injurious,  the  case  is  not  one  of  negligence,  but  one  of  want  of  skill.5 

233.  Negligence  or  Failure  to  Exercise  Reasonable  Care  and  Diligence. — 
A  failure  to  make  a  visit  or  inspection  as  promised  at  a  certain  time  will  sus- 
tain a  finding  of  negligence   in  a  physician  (or  engineer).6     In  such  case  it 
seems  that  a  physician  is  not  liable  for  the  unskillfulness  of  another  physi- 
cian which  he  has  sent  in  his  stead,  the  substitute  being  reg-arded  as  an  inde- 
pendent contractor.7     He  is  not  responsible  for  evil  consequences  due  to  his 

1  Union  Pac.  Rv.  Co.  V.  Estes(Kan.),  16  som  (Sup.),   31   N.  Y.  Supp.  966;    Camp- 
Pac    Rep  131  [18881.  bell  v.  Russell,  139  Mass.  278  [1885]. 

2  Harmer  v.  Cornelius,  5  C.  B.  (N.  S.)  5  Carpenter  v.  Blake,  60  Barb.  488  [1871]; 
•236  [1858].  semble,  Lottman  -y.  Barnett,  62  Mo.  159. 

3 Chase  v.   Heaney,    70  111.    268  [1863];  6Booii  v.  Reed  (Sup.),  23  N.  Y.  Supp. 

Springfield  C.   A.   v.    Smith,  32  111.   252  421. 

1-1863]  7  Myers  v.  Holborn  (N.  J.),  33  Atl.  Rep. 

'       4  Carpenter  v.  Blake,  60  Barb.  490  [1871] ;  389. 
50  N.  Y.  696,   explained;  Deguan  v.  Ran- 


§  235.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  229 

failure  to  send  his  patient  a  specialist,  as  he  had  promised  to  do,  for  a  dis- 
order other  than  the  one  which  he  was  called  to  treat.1 

A  case  in  point  arose  in  a  barber  shop,  where  the  barber,  who  shaved  a 
postman,  used  inferior  soap  and  caused  eczema,  and  it  was  held  no  recovery 
could  be  had.  The  barber  was  responsible  for  want  of  care,  knowledge,  or 
skill,  but  if  he  had  used  ordinary  care  in  choosing  his  materials  [soap]  there 
was  no  liability.2 

234.  Negligence  on  the  Part  of  an  Agent.  —  An  architect  or  engineer 
as  between  himself  and  his  employer  is,  in  his  usual  capacity,  an  agent  or 
servant.     The  rules  for  the  liability  of  agents  are  thus  laid  down  by  Mi\ 
Story  in  his  book  on  Agency :     "  Whenever  an  agent  violates  his  duties  or 
obligations  to  his  principal,  whether  it  be  by  exceeding  his  authority  or  by 
positive  misconduct,  or  by  negligence  or  omission  in  the  proper  functions 
of  his  agency,  or  in  any  other  manner,  and  any  loss  or  damage  thereby  falls 
on  his  principal,  he  is  responsible  therefor,  and  bound  to  make  full  indem- 
nity.    The  loss  or  damage  need  not  be  directly  or  immediately  caused  by 
the  act  which  is  done  or  omitted  to  be  done.     It  will  be  sufficient  if  it  be 
fairly  attributable  to  it  as  a  natural  result  or  just  consequence."3     "It  is 
the  primary  duty  of  an  agent,  whose  authority  is  limited  by  instructions,  to 
adhere  faithfully  to  those  instructions  in  all  cases  to  which  they   ought 
properly  to  be  applied.     If  he  unnecessarily  exceeds  his  commission,  or  risks 
the  property  of  his  principal,  he  thereby  renders  himself  responsible  to  his 
principal  for  all  losses  and  damages  which  are  a  natural  consequence  of  his 
act,  and  it  will  constitute  no  defense  for  him  that  he  intended  the  act  to 
be  a  benefit  to  the  principal."4     Therefore,  when  the  principal  directed  his 
agent  to  send  him  $300  in  $50  or  $100  bills  and  the  agent  sent  the  amount 
in  bills  of  $5,  $10,  and  $20,  which  never  reached  the  principal,  the  agent  was 
held  to  have  deviated  from  his  instructions  and  to  be  liable  for  the  loss; 5  and 
again,  where  an  agent  was  directed  to  send  money  by  express,  and  instead  he 
sent  a  check  by  mail,  it  was  held  he  must  answer  to  the  principal  for  the 
amount  of  the  check  which  proved  to  be  worthless.9 

Judge  Cooley  says :  "  Negligence  is  the  failure  to  observe  for  the  pro- 
tection of  the  interests  of  another  person  that  degree  of  care,  precaution, 
and  vigilance  which  the  circumstances  justly  demand." 7 

235.  Negligence   or  Want  of  Care  and  Skill  of  a  Professional  Man.— 
A  man  who  undertakes   as   a  lawyer   to    conduct  an  action  at   law  with- 
out possessing  skill  is  negligent;  and  one  who  undertakes  to  treat  a  sick  or 

1  Jones  v.  Vroom  (Colo.),  45  Pac.  Rep.          7  49  Mich.  153;  Terre  Haute  v.  Hudnutt, 
234.  112  Ind.  542;  Harmer  v.  Cornelius,  5  C.  B. 

2  36  Alb.  L.  J.  179.  (N.  S.)  236  [1858];  Somerby  u.  Tappan,  1 
s  Story  on  Agency,  §  217,  p.  259.  Wright  (Ohio)  570   [1834];    Anderson  0. 

4  Walker  v.  Walker,  5  Heiskell  (Tenn.)  Whitaker  (Ala.),  11  So.  Rep.  919;  Sprine- 
428.  field   C.  A.  v.  Smith,   32  111.  252  [1663]; 

5  Story  on  Agency,  §  192,  n.  3.  Downer  «.  Davis,  19  Pick.  72  [1883];  Sher- 

6  Walker  0.  Walker,  5  Heiskell  (Tenn.)  man  0.  Bates,  15  Neb.  18. 
428. 


230       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  23C. 

wounded  man  as  a  physician  or  surgeon  without  possessing  a  fair  degree  of 
professional  knowledge  is  guilty  of  a  breach  of  duty.1  A  mechanic  who 
undertakes  to  build  a  house  is  liable  in  damages  if  through  his  ignorance  he 
does  his  work  unskillfully." 

In  keeping  with  the  foregoing  principles,  it  has  been  held  that  a  cloak- 
maker  was  responsible  for  lack  of  skill  and  care  in  cutting  garments  from 
•cloth;3  and  a  dyer  for  damages  arising  from  his  unskillfulness; 4  that  a 
workman  who  recommended  himself  as  competent,  and  undertook  to  work 
as  a  master  builder,  could  not  recover  for  his  services  when  his  employer 
suffered  loss  through  his  unskillfulness  or  negligence; 5  that  one  who  repre- 
sents himself  as  a  builder,  and  as  having  a  long  and  large  experience  in  build- 
ing, may  be  dismissed  for  incompetency,  and  his  employer  may  recover 
from  him  for  any  damage  sustained  by  reason  of  his  deceit.8  If,  however, 
.-a  superintendent  is  employed  by  an  owner  who  knows  the  habits  and  ability 
of  the  person  so  employed,  his  incapacity  and  lack  of  skill  need  not  prevent 
liirn  from  recovering  for  his  services.7 

236,  Skill   Required  of  Specialists.  —  The  same  contracts  are  implied 
and  the  same  rules  of  liability  are  laid  down  in  case  of  physicians.8    One  case 
held  that  when  a  patient  called  upon  a  clairvoyant  physician,  it  was  held  that 
lie  should  be  treated  with  the  ordinary  skill  and  knowledge  of  physicians  in 
good  standing,  practicing  in  the  vicinity,  and  that  instructions  to  a  jury 
that  he  should  be  treated  with  the  ordinary  skill  and  knowledge  of  the 
clairvoyant  system  were  properly  refused  and  in  error.9     So  it  has  been  held 
of  attorneys.'0     The  right  of  action  against  an  examiner  of  titles  for  negli- 
gence exists  only  in  favor  of  the  party  to  the  contract.     It  does  not  inure 
to  the  widow  of  the  employer,11  nor  to  an  assignee  of  the  mortgage  negotiated 
on  the  faith  of  such  abstract." 

237.  Skill  and  Care  Required  of  Engineers  and  Architects — Instances.* 
—Architects  and  engineers  have  been  held  equally  liable  upon  their  implied 
representation  that  they  possess  the  requisite  skill,  and  upon  their  implied 
contract  to  exercise  it.     They  are  responsible  for  defective  and  insufficient 

1  Terre  Haute  v.  Hudnutt,  112  Ind.  542.          9  Nelson  v.  Harrington  (Wis.),  40  N.  W. 

2  49  Mich.  153.  Rep.  228  [188k1 :  Pelky  0.  Palmer  (Mich.), 

3  Parish  v.  Gilmore,  33  Wis.  608  [1873].       67  N.  W.  Rep.  561. 

4Woodrow  v.  Hawving    (Ala.),  16  So.  10  Bridges  v.  Paige,  13  Cal.  640  [1859]; 

Rep.  720.  Mismanagement,  Drais  v.    Hogan,  50  Cal. 

5  Gaslin  v.  Hudson,  24  Vt.  140  [1852].  121  [1875];  Examiners  of  titles,  Rankin  v. 

6  Jones  «>.   Vestry  of  Church,    19  Fed.  Sclmeffer,  4  Mo.  App.  108  [1877];  Roberts 
Rep.  59  [1883].  •».  The  Loan  &  Abstract  Co.,  63  lown  76 

7  Story   on    Bailments,    g  485;    Felt    v.  [1884];  Chaser  Heaney,  70  111.  268  [1873]; 
School  District,  24  Vt.   297  [1852];  Jones  and  see  Thomas  v.  Carson  (Neb.),  65  N.W. 
v.    Vestry  of   Church,    19  Fed.    Rep.    59  Rep.  899. 

£1883]  11  Schade  v.  Gerner  (Mo.  Sup.),  34  S.  W. 

8  Carpenter  t>.  Blake,  60  Barb.  (N.  Y. )  488      Rep   576. 

[1871]:    Robinson   v.   Campbell,    47  Iowa          12  Talpey  «.  Wright  (Ark.)-    32   S.   W. 
«25  [1878] ;  Cooley's  Torts  649.  Rep.  1072. 

*  See  Sec.  258,  infra. 


§  238.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  231 

plans;1  and  have  been  held  liable  for  defective  work,  such  as  foundations. 
They  are  bound  not  only  to  furnish  proper  plans,  but  to  see  that  the  struc- 
ture is  at  least  reasonably  well  constructed.2  It  has  been  held  that  a  duty 
was  required  of  them  to  cause  foundations  to  be  sufficiently  deep  and  other- 
wise protected  to  prevent  settling  and  tjje  cracking  of  the  walls  of  a  build- 
ing.3 An  architect  has  been  held  liable  for  not  having  made  a  chimney- 
flue  of  sufficient  dimensions.  The  fact  that  the  chimney  proved  inadequate 
for  the  purposes  for  which  it  was  designed  was  held  to  entitle  the  owner  to 
a  deduction  from  what  was  due  the  architect  for  his  services.4  A  builder 
has  likewise  been  held  liable  for  building  a  chimney  that  did  not  carry  off 
the  smoke.6 

238.  Owner  may  Offset  His  Damages  against  Sum  Due  Engineer  or 
Architect  for  Services.  —  The  damages  sustained  may  support  a  counter 
•claim  against  the  architect,  and  be  deducted  from  the  amount  due  him 
under  the  contract  of  employment  for  drawing  the  plans  and  superintend- 
ing the  construction  of  the  house;  but  such  defects  cannot  be  urged  to  de- 
feat all  recovery  on  the  contract,  the  same  having  been  performed  according 
to  its  terms,  unless  the  damage  exceeds  the  amount  to  which  the  architect  is 
entitled.6 

An  architect  employed  by  the  owner  for  reward  to  superintend  the  con- 
struction of  a  house  is,  as  between  himself  and  employer,  answerable  for 
either  negligence  or  unskillfulness  in  the  performance  of  his  duty  as 
architect.  An  architect  sued  for  the  balance  clue  to  him  under  an  agreement 
with  the  owner  for  commission  for  his  services  in  superintending  the  con- 
struction of  a  dwelling  house;  his  claim  was  resisted,  and  damages  also  de- 
manded upon  a  counter  claim,  on  the  ground  that  by  his  negligence  and  want 
of  caro  and  skill  in  the  performance  of  the  duty  he  had  been  retained  to  do 
and  had  undertaken  to  do,  the  contractor's  work  had  been  done  in  a  defect- 
ive and  inferior  manner  as  regards  the  construction  of  the  building  and  the 
quality  of  the  materials.7  In  an  action  for  his  services,  the  architect 
employed  to  superintend  the  erection  of  a  building  and  see  that  the  builder 
properly  fulfilled  the  conditions  of  his  contract  cannot  excuse  his  neglect  in 

1  Niver  «.  Nash  (Wash.),  35  Pac.  Rep.          5  Somerby  v.  Tappan,  1  Wright  (Ohio) 
380;    Erskine  v.    Johnson,  23   Neb.    265;       570   [1834];    and  see  Krebs  Mfg.    Co.    v. 
Lake  «.  McElfatrick  (Sup.),  19  N.  Y.  Supp.      Brown  (Ala.),  18  So.  Rep.  659. 

494,  reversed  in  139  N.  Y.  349;  Pierson  v.  6  Shreiner  v.  Miller,  supra;  Hubert  v. 
Tyndall  (Tex.),  28  S.  W.  Rep.  232.  Aitkin,  15  Daly  237  [1889J;  14  Amer.  & 

2  Shipman  v.  State,  43  Wis.  381;  Money-      Eng.  Ency.  Law  781. 

penny  «.  Hartland,  1  C.  &  P.  352;  Oilman  7  Badgley  v.  Dickinson,  13  Ontario  App. 

v.  Stevens,  54  How.  Pr.  (N.  Y.)  197;  and  494  [1887];    the  following  authorities  were 

see  Petersen  v.   Rawson,  34  N.  Y.    370;  cited:  Shiells  v.  Blackburne  1  H.  Bl.  158; 

Newman  v.  Fowler,  37  N.  J.  Law  89.  Hamilton  Provident  &  Loan   Society  «. 

3  Shreiner  t>.    Miller,  67  la.    91  [1885];  Bell,  29  Gr.  203;  Canada   Lauded  Credit 
accord,  Newman  v.  Fowler,  8  Vroom  (N.  Co.  v.  Thompson,  8  A.  R.  696;  Harmer  v. 
J.)  87.  Cornelius,  5  C.  B.  (N.  S.)236;  Turner?). 

4  Hubert  v.  Aitkin  (N.  Y.),  15  Daly  237;  Goulden,  L.  R.  9  C.  P.  57;  Re  Hopper,  L. 
[1889];  and  see  semble,  Brown  0.  Burr  (Pa.),  R.  2  Q.  B.  367;  Ranger  v.  Great  Western 
2  Atl.  Rep.  828.  Ry.  Co.,  5  H.  L.  Cas.  72. 


232      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  239. 

the  performance  of  his  duties  by  showing  that  the  owner  was  about  the 
premises  during  the  progress  of  the  work  and  must  have  seen  the  imper- 
fections set  up  in  defense  of  the  claim.1 

In  another  case  the  architect  sued  for  his  fees  and  commission  for  draw- 
ing plans  and  specifications  and  superintending  the  erection  of  a  house. 
He  had  given  certificates  to  the  builder  greatly  in  excess  of  the  proportion 
stipulated  for  by  the  contract,  and  the  builder  having  subsequently  failed, 
the  owner  was  compelled  to  have  the  work  done  by  others,  at  a  higher  price* 
It  was  held  that  he  was  entitled  to  deduct  from  the  amount  which 'would 
have  been  due  to  the  architect  the  loss  sustained  by  the  tetter's  negligence 
in  certifying  for  too  much.  The  terms  of  the  building  contract  are  not 
stated  in  the  report,  though  it  is  probable  that  they  were  the  usual  ones. 
The  case  was  fully  argued,  but  it  does  not  appear  to  have  been  suggested 
that  the  plaintiffs  position  as  arbitrator  exempted  him  from  responsibility 
for  negligence  under  his  own  agreement  with  the  defendant.2 

The  same  law  holds  when  an  engineer  is  called  upon  in  his  professional 
capacity  to  make  investigations,  inspections,  and  estimates,  and  either  from 
want  of  skill  or  negligence  on  his  part,  the  report  or  estimate  is  incorrect; 
he  is  liable  to  his  employer  for  unnecessary  expense  or  injury  occasioned.3 
An  engineer  who  made  estimates  of  a  bridge  for  a  contractor  without 
informing  himself  (by  boring  or  otherwise)  of  the  nature  of  the  soil  for  the 
foundations,  which  proved  to  be  bad,  should  not  be  allowed  to  recover  for 
his  services  in  making  plans,  estimates,  and  specifications  if  his  employer 
has  been  damaged  by  a  greater  amount  than  what  the  services  were  worth. 
It  is  no  excuse  that  he  relied  upon  information  and  advice  of  another  engi- 
neer, who  had  made  experiments  and  investigated  the  soil;  that  when  he 
was  employed  to  estimate  the  expense  of  works  he  was  bound  to  ascertain 
for  himself  by  experiments  the  character  of  the  soil;  if  he  relied  upon  the 
information  of  others,  which  turned  out  to  be  false  or  insufficient,  he  was 
liable  for  the  consequences;  and  the  opinion  was  expressed  that  an  engineer 
should  not  estimate  work  at  a  price  at  which  he  would  not  contract  for  it, 
for  if  he  does  he  deceives  his  employer.4 

239.  Architect  or  Engineer  must  Give  Such  Careful  Superintendence 
and  Inspection  as  to  Prevent  the  Contractor  from  Making  Material  Omis- 
sions and  Variations. — When  a  building  is  to  be  erected  according  to  the 
plans  and  specifications  and  under  the  superintendence  of  an  architect,  and 
to  his  satisfaction,  payment  to  be  made  on  the  production  of  his  certificate, 
the  architect  must  bestow  such  care  and  attention  that  the  carpenters  and 
masons  will  not  make  any  material  variation  from  the  plans  and  specifica- 

1  Lotholz  D.  Fiedler,  59  111.  App.  379.  3  Mistakes  in  making  a  survey,  McCarthy 

2  Irving  v.  Morrison,  27  C.  P.  (Upper      v.  Bauer,  3  Kans.  237;  but  see  Halsey  v. 
Canada)  242;  but  see  Vigeant  «.  Scully,  20      Hobbs  (Ky.),  32  S.  W.  Rep.  415. 

111.  App  437;  Shipman  v.  State,  43  Wi?.  4  Money  penny  v.  Hartland,  1  C.  &  P. 
381,  which  held  that  monthly  estimates  352  [1824],  2  C.  &  P.  378  [1826];  and  see 
need  not  be  accurate.  Whitty  v.  Lord  Dillon,  2  F.  &  F.  67. 


§  239.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  233 

tions  which  ordinary  care  and  attention,  when  bestowed  by  a  competent 
architect,  would  detect  and  prevent,  or  detect 'in  time  to  be  remedied.1  If 
he  fail  to  bestow  such  care  and  attention,  and  damages  result  to  his 
employer,  he  loses  his  claim  to  compensation  for  so  much,  notwithstanding 
the  owner  may  have  a  remedy  against  his  contractor.  This  is  true  even 
though  the  owner  may  have  settled  with  the  contractor  in  full  after  the 
architect  had  refused  to  give  his  certificate,  which  the  contract  required 
as  a  condition  precedent  to  payment  for  the  work.8 

When  the  contractor,  by  the  terms  of  the  contract,  agreed  to  lay  out  his 
work  himself,  and  made  a  mistake  in  the  height  of  ce'rtain  windows  above 
the  floors,  and  it  has  been  proved  that  the  architect  has  diligently  superin- 
tended the  progress  of  the  work,  it  was  held  that  such  a  defect  was  not  charg- 
able  to  the  architect  under  the  circumstances  of  the  case.3  This  judgment 
was  reversed  in  the  superior  court,  and  the  case  was  carried  to  the  court 
of  appeals  and  the  decision  stated  sustained,  but  with  dissenting  opinion. 
The  ground  of  reversal  was  upon  the  question  of  fact  whether  or  not  "  the 
architect  was  diligent  in  his  attendance  upon  the  building,"  and  if  he  "  had 
bestowed  as  much  personal  attention  upon  the  building  as  was  necessary,, 
and  that  the  variations  mentioned  were  not  caused  by  carelessness,  negli- 
gence, or  inattention  on  his  part."  Considerable  stress  was  put  upon  the 
fact  that  the  contractor  was  by  the  terms  of  his  contract  "to  lay  out 
his  own  work."  The  majority  of  the  appellate  court  agreed  with  the 
referee,  who  had  inquired  into  the  case,  that  a  mistake  on  the  part  of  the 
builder  by  which  windows  in  the  front  of  the  building  were  2f  inches 
higher  than  those  in  the  rear,  was  not  such  an  error  as  the  architect  was 
bound  to  discover  in  his  regular  superintendence  of  the  progress  of  the  work. 
However,  the  rule  laid  down,  that  an  architect  is  responsible  for  his  failure 
to  bestow  such  care  and  attention  as  shall  detect  and  prevent  material  and 
important  variations  from  his  plans  and  specifications,  remains  unques- 
tioned.4 It  is  the  architect's  duty  to  discover  and  guard  against  all  such 
defects  as  can  be  prevented  by  the  exercise  of  the  ordinary  skill  and  atten- 
tion of  a  person  of  his  profession  and  in  his  relation.5  The  nature  and 
extent  of  an  architect's  duties  has  been  held  to  be  a  matter  of  fact,  and  not 
of  law,  to  be  determined  by  the  jury  from  the  evidence  of  the  case,  guided 
by  proper  instructions  from  the  court.8 

On  the  same  ground,  building  inspectors  who  are  required  by  a  city  ordi- 
nance to  inspect  buildings  in  the  course  of  their  erection,  and  to  see  that 

1  Peterson  v.  Rawson,  2  Bosw.  (N.  Y.)  case  that  would  have  been  in  point  but  for 
234  [1857].  the  impertinent  answers  of  the  commis- 

2  Peterson    D.   Rawson,   supra ;  accord,  sioners.     It  was  lost  on  account  of  the 
Pierson  v.  Tyndall  (Tex.),  28  S.  W.  Rep.  pleadings. 

232.  5  Oilman  v.  Stevens,  54  How.  Pr.  (N.  Y.) 

3  Peterson  v.  Rawson,  supra.  197  [1877]. 

4  Peterson  «.   Rawson,   34  N.  Y.   370;  6  Vigeant  v.  Scully,  20  Bradw.  437. 
Shipman  t>.  State,  43  Wis.  381,  is  another 


234:     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  240. 

the  buildings  are  erected  as  provided  by  the  ordinance,  has  been  held  liable 
to  persons  damaged  by  the  nonperformance  of  a  duty  imposed  upon  them  to 
require  the  building  to  be  properly  constructed.1 

240.  Engineer   and   Contractor  or  Architect  and  Builder  Jointly  and 
Severally  Liable. — If  an  architect  is  to    oversee  the  erection  of  a  house, 
and  it  is  badly  built,  being  defective  in   workmanship  and  materials  in 
consequence  of  the  joint  neglect  or  want  of  skill  of  the  architect  and  the 
contractor,  an  action  will  lie  against  either  the  architect  alone  or  the  con- 
tractor, or  both,  and  the  one  sued  may  be  held  responsible  for  the  entire 
detriment  or  injury  occasioned.     Nor  can  the  one  sued  claim  contribution, 
from  the  other,  so  as  to  divide  the  loss  equally  between  them,  the  principle 
of  the  law  being  that  it  will  not  undertake  to  adjust  the  burdens  of  mis- 
conduct.    Nor  will  the  fact  that  the  owner  has  refused  to  pay  a  part  of  the 
money  due  to  the  contractor  because  the  house  was  badly  built  bar  such  a 
suit  against  the  architect.     It  is  not  a  necessary  consequence  that  the  archi- 
tect be  responsible  for  every  part  of  the  neglect  or  misconduct  of  the  con- 
tractor.     He  is  responsible  only  when  the  negligence  of  the  contractor   was 
such  as  to  have  been   discoverable  by  the  exercise  of  reasonable  care  and 
skill  on  the  part  of  the  architect,  and  for  the  effects  of  negligence  beyond 
this  measure  the  contractor  would  be  answerable  alone.2 

An  architect  is  bound  only  to  exercise  reasonable  care,  and  to  use  reason- 
able means  of  observation  and  detection  in  the  supervision  of  the  building, 
and  when  he  appears  to  have  done  so,  the  mere  fact  that  inferior  material 
has  been  used  by  the  contractor  in  some  instances,  and  that  the  plumbing 
had  been  carelessly  done,  does  not  establish  as  a  matter  of  law  that  he  has 
not  fully  performed  the  contract.3  He  is  bound  to  exercise,  for  the  protec- 
tion of  the  employer,  a  reasonable  degree  of  skill  and  care,  and  will  be 
liable  for  any  loss  or  damage  occasioned  by  a  failure  so  to  do;  yet  an  agent, 
architect,  or  engineer  cannot  be  held  responsible  for  unforeseen  and  un- 
expected losses  or  damage  out  of  the  ordinary  course  of  business  or  of 
natural  events,  and  not  to  be  guarded  against  by  reasonable  diligence  and 
foresight.4 

The  law  presumes  that  an  architect  or  engineer  has  done  his  duty,  and 
the  burden  of  proving  to  the  contrary  is  upon  the  employer  or  person  who 
alleges  the  architect's  unfitness  or  negligence.5 

241.  Owner  Not  Liable  for  Misconduct  of  His  Architect. — In  general,  no 
action  will  lie  against  the  owner  for  misconduct  of  his  architect  who  has 
been  employed  merely  to  prepare  plans  and  specifications  and  to  procure  a 
builder  to  erect  the  building.     In  a  case  where  an  architect  had  made  an 

1  Merritt  v.  McNally  (Mont.),  36  Pac.  semble  Gilman  *>.  Stevens,  54  How.  Pr.  197 
Rep.  44.  [1877]. 

2  Newman  <o.  Fowler,  37  N.  J.  Law  89  (8  5  Gaither  v.  Myrick,  9  Mo.  118;  Lampley 
Vroom)  [18741.  v.  Scott,  24  Miss.  533 ;   accord,   Styles  v. 

3  Hubert  v.   Aitkin,  5  N.  Y.  Supp.  839.  Tyler,  64  Conn.  432. 

4  Johnson  D.   Martin,  11  La.  Ann.  27; 


§241.]  ENGINEER'S  AND  ARCHITECTS  EMPLOYMENT.  235 

estimate  of  the  work  and  materials  necessary,  and  had  represented  to  the 
builder  that  they  were  correct,  upon  the  strength  of  which  the  builder 
made  a  bid  and  entered  into  a  contract,  it  was  held  he  could  not  recover 
against  the  owner  for  the  extra  cost,  the  estimate  having  been  greatly  below 
•the  actual  cost,  that  the  amount  of  his  recovery  was  limited  to  the  contract 
price.  To  entitle  the  contractor  to  recover  more  than  the  contract  price 
three  things  must  be  made  out:  (1)  that  the  architect  was  the  owner's 
agent;  (2)  that  the  architect  was  guilty  of  fraud  or  misrepresentation; 
(3)  that  the  owner  knew  of  it  and  sanctioned  it.  If  these  facts  were  not 
shown,  and  there  had  been  misconduct  on  the  part  of  the  architect,  the 
contractor's  remedy  must  be  against  him.1 

A  dictum  apparently  to  the  contrary  was  expressed  in  a  later  American 
case,  in  which  an  engineer  regularly  employed  by  a  company  in  charge  of 
the  company's  works,  under  whose  direction  and  constant  supervision  the 
works  were  performed,  was  declared  a  special  agent  of  the  company  (not  the 
agent  of  the  contractor)  as  to  measurements  and  calculations  made  by  him 
and  his  assistants,  and  if  they  were  not  correct,  and  extra  and  unnecessary 
work  and  expenditure  should  result,  the  loss  ought  not  to  fall  on  the  con- 
tractor, but  upon  the  company.  The  facts  of  the  cases  differ  materially. 
In  the  latter  case  the  contract  expressly  states  the  engineer  to  be  the  engineer 
of  the  company,  although  by  its  terms  nothing  could  be  done  contrary  to 
the  stipulations  of  the  contract  without  the  written  consent  of  the  com- 
pany; yet  also  by  its  terms  the  contractor  was  entitled  to  rely  on  the  actual 
instructions  and  directions  of  the  engineer  within  the  scope  of  his  authority.2 
These  powers  would  make  him  an  agent;  but  the  cases  may  be  distinguished 
further  in  that  in  the  former  case  the  estimates  were  made  and  submitted 
to  the  contractor  before  the  contract  was  made,  and  the  builder  accepted 
them  on  faith,  while  in  the  latter  case  the  estimates  were  a  part  of  the  con- 
tract and  necessary  to  its  performance. 

A  contractor  who  performs  extra  work  upon  the  assurance  of  an  engineer 
of  the  company  that  it  will  be  paid  for  or  allowed  by  the  company  without  the 
authority  of  the  company  or  the  requisite  formality  prescribed  by  his  con- 
tract cannot  recover  from  the  company;  he  must  look  to  the  engineer  for 
compensation,  if  he  recovers  at  all,  which  will  depend  upon  what  personal 
liability  the  engineer  assumed  in  ordering  work.3  There  is,  moreover,  an 
element  of  negligence  on  the  part  of  the  builder  in  accepting  the  estimate 
of  the  architect,  and  in  not  making  an  estimate  himself  or  having  it  made 
by  the  engineer  of  his  own  selection.  Another  case  illustrates  the  element 
of  negligence  more  strikingly,  in  which  a  builder  had  agreed  to  sign  a  con- 
tract to  execute  for  a  definite  sum  certain  works  described  in  some  rough 

1  Scrivner  v.  Pask,  L.  R.  1  Com.  Pleas      Eq.  396  [1869]. 

Cas.  715  [1866].  3  Woodruff  v.  R.  &  P.  Ry.  Co.,  108  N. 

»  Seymour  t>.  Long  Dock  Co.,  20  N.  J.      Y.  39  [1888]. 


236      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  242, 

sketches  and  verbal  explanations  of  an  architect.  The  architect  sub- 
sequently sent  to  the  builder  a  contract  to  perform,  for  the  sum  previously 
agreed  upon,  the  works  delineated  and  described  in  certain  plans  and 
specifications  thereto  annexed,  and  which  differed  materially  from  the 
works  described  in  the  rough  sketches  and  verbal  explanations  on  which  the 
builder  had  made  his  tender.  Having  signed  the  contract  and  proceeded 
with  the  work,  it  was  held  that  he  was  not  entitled  to  any  relief,  that  the 
mistake  under  which  he  had  signed  the  contract  was  due  to  his  own  negli- 
gence.1 

242.  Engineer  and  Architect  are  Liable  to  their  Employer  and  to  Nobody 
Else. — An  agent  is  liable  to  no  one  except  his  principal  (his  employer) 
for  damage  resulting  from  an  omission  or  neglect  of  duty,  or  want  of  skill 
or  attention,  even  though  such  omissions  be  with  a  malicious  intent  to  in-  , 
jure  a  third  person  and  have  that  effect.8  An  architect  or  builder  of  a 
public  work  even  is  answerable  only  to  his  employer  for  any  want  of  care  or 
skill  in  the  execution  thereof.  He  is  not  liable  to  third  persons  for  acci- 
dents or  injuries  which  may  occur  after  the  completion  of  such  work.3 

A  manufacturer  is  liable  only  to  the  purchaser  of  his  goods  for  defective 
materials  and  for  want  of  skill  and  care  in  the  construction  of  the  article 
sold.  A  third  party  injured  may  not  sue  the  manufacturer4  unless  the 
negligence  is  imminently  dangerous  to  others,  as  when'  a  druggist  makes  a 
mistake  in  labeling  or  compounding  a  medicine.5 

A  distinction  has  been  made  in  law  between  a  tort  to  a  third  person  due 
to  the  omission  of  some  act  or  obligation  to  the  public,  and  the  commission 
of  some  act  amounting  to  a  tort.  When  he  omits  to  do  some  duty  or  obli- 
gation which  he  owes  to  his  employer  and  which  is  a  tort  to  a  third  person, 
he  is  not  liable;  but  when  he  commits  a  tort  which  is  an  injury  to  any  one, 
there  is  no  reason  why  he  should  not  be  liable  for  his  acts,  as  any  one  else. 
Therefore,  when  an  architect  having  the  general  charge  and  superintendence 
of  work  adopted  a  certain  method  and  means  of  construction  and  repair, 
and  the  plan  was  a  bad  one,  or  the  supports  were  inadequate,  and  a  disaster 
resulted  which  was  attributable  to  misfeasance  or  negligence  in  a  work 
which  the  architect  undertook,  and  in  which  he  failed  to  exercise  the  care 
'and  skill  which  the  law  imposed  upon  him,  he  was  held  responsible  not  only 
to  his  employer,  but  to  workmen  who  were  injured  in  consequence.8 

When  the  superintendent  of  a  plantation  neglected  and  deliberately  re- 
fused to  keep  a  drain  open  on  the  premises  of  his  employer,  by  reason  of 
which  neglect  and  refusal  [omission]  a  neighbor's  lands  were  flooded  and  great 

1  Kimberly  t>.  Dick,   41   L.   J.   Ch.   38          4  Winterbottom  v.  Wright,  10  M.  &  W. 

[1871].  109;  Losee  v.  Clute,  51  N.  Y.  494. 

2Feltus  v.  Swan,  62  Miss.  415  [1884];          5  Thomas  <o.  Winchester,  16  N.  Y.  397. 
Downer  t>.  Davis,  19  Pick.  72.  *  Lottman  v.  Barnett,  62  Mo.  159 ;  and 

3  Mayor  t>.  Cunliff,  2  N.  Y.  165.  see  Trustees  v.  Bradfield,  30  Ga.  1. 


§  243.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  237 

damage  done,  it  was  held  that  the  superintendent  was  not  liable  to  the 
neighbor,  and  no  action  could  be  maintained  against  him;1  but  when  an 
engineer  in  the  act  of  running  a  railway  line  through  a  village  drove  a 
stake  in  one  of  its  streets,  over  which  a  citizen  fell  and  broke  his  leg,  it  was 
held  that  the  tort  was  the  personal  act  of  the  engineer  in  running  the  line, 
and  in  law  it  was  the  act  of  the  company  by  whose  authority  and  in  whose 
service  the  work  was  done,  and  that  the  citizen  had  his  election  to  seek  his 
remedy  against  one  party  or  against  both  parties  jointly.8 

243,  Liability  for  Acts  of  Assistants.  —  The  question  frequently  arises  as 
to  who  is  liable  for  the  acts  of  assistants,  sub-agents,  or  servants.  It  is.  a 
question  of  who  employs  or  has  the  control  of  the  person  who  commits  the 
act.  If  an  engineer  selects  an  assistant  on  behalf  of  the  company  and 
with  its  authority,  and  as  an  employee  of  the  company,  the  assistant  is  an 
employee  of  the  company,  even  though  he  receives  his  instructions  and  is  sub- 
ject to  the  control  of  the  engineer;  but  if  the  engineer  has  undertaken  to 
do  business  or  accomplish  some  task  or  undertaking  for  his  employer,  and 
he  employs  assistants  on  his  own  account  to  assist  him  in  what  he  has  un- 
dertaken, then  the  assistants  are  the  representatives  of  the  engineer  only, 
and  are  responsible  to  him  for  their  conduct,  and  the  engineer  is  responsible 
to  the  company  for  the  manner  in  which  the  work  or  business  is  done, 
whether  by  himself  or  his  assistants.  In  the  latter  case,  the  engineer  is  in 
a  position  of  an  independent  contractor,  at  liberty  to  perform  the  under- 
taking by  the  agencies  of  his  own  selection,  and  is  responsible  to  his  own 
principal  for  the  due  execution  of  the  enterprise  by  the  means  he  has 
selected. 

The  authority  of  the  engineer  to  employ  assistants  on  account  of  the 
company  is  frequently  implied  by  the  circumstances  of  the  case,  as  when  the 
chief  engineer  of  a  railroad  company  has  been  employed  "to  survey  and 
establish  "  its  line,  it  was  held  that  he  was  authorized  to  employ  the  neces- 
sary subordinates  and  assistants  on  behalf  of  the  company,  and  that  they 
became  by  such  act  of  hiring  the  servants  of  the  company.3 

It  may  be  a  matter  of  custom  or  precedence.  Thus  if  the  engineer's 
contract  of  service  does  not  prohibit  him  from  selecting  or  employing  his 
assistants,  he  may  show  that  it  was  the  custom  for  engineers  to  hire  their 
own  assistants,  in  order  to  establish  the  relation  of  master  and  servant 
between  the  company  and  his  subordinates.4 


.  Swan,  62  Miss.  415  [1884].  Miss.  581;  Gillis  v.  Duluth,  etc.,  R.  Co. 

2  Grudger  «.  Western  N.  C.  R.  Co.,  87  (Minn.),  25  K  W.  Rep.  603. 

.  C.  525  [1882].  4  White  v.   San    Antonio    W.   W.   Co. 

3  New  Orleans,  etc.,  R.  Co.  <o.  Reese,  61  (Tex.),  29  S.  W.  Rep.  252. 


CHAPTER   XI. 

LIABILITY  OF  ENGINEER  OR  ARCHITECT  WHEN  HIS  FUNCTIONS  ARE 
JUDICIAL  OR  DISCRETIONARY. 

244.  Not  Liable  for  Many  Acts  or  Omissions  when  His  Functions  Are 
Judicial.* — What  has  been  said  thus  far  in  the  preceding  chapter  of  the 
liability  of  engineers  or  architects  has  been  with  reference  to  them  strictly 
in  their  professional  capacity  or  when  employed  as  agents  or  servants.  '  In 
other  capacities  and  for  many  acts  or  omissions,  they  may  be  relieved  en- 
tirely from  responsibility. 

There  are  certain  conditions  and  circumstances  under  which  the  law  and 
the  public  good  require  that  a  man  should  be  relieved  from  the  consequences, 
of  his  acts,  within  certain  limits,  and  it  happens  that  two  of  these  conditions 
belong  particularly  to  engineering  and  architectural  practice.  Either  con- 
ditions may  exist  when  he  is  a  servant  or  employed  professionally,  so  that 
what  has  been  said  in  the  early  part  of  this  chapter  must  be  tempered  and 
modified  when  such  conditions  exist.  One  of  the  conditions  and  circum- 
stances mentioned  is  that  surrounding  a  judge,  in  his  judicial  capacity. 
To  administer  justice  with  freedom  and  security  a  judge  must  be  free  to- 
discharge  his  functions  after  the  dictates  of  his  own  conscience,  unaffected 
by  fears  of  prosecutions  by  persons  who  may  have  been  dissatisfied  with  his 
decisions.  This  has  always  been  the  established  law,  that  a  judge  was 
shielded  from  all  liability  in  the  exercise  of  his  judicial  duties  so  long  as  he 
exercised  them  honestly.  The  justice  and  necessity  of  such  a  rule  cannot  be 
questioned,  but  this  immunity  from  action  is  not  confined  to  those  only  who 
sit  as  judges  in  court.  It  extends  for  the  protection  of  every  officer  who 
is  called  upon  to  exercise  duties  which  are  in  their  nature  judicial,  or  which 
are  to  be  performed  according  to  the  dictates  of  his  judgment.1  f 

Such  duties  when  exercised  by  other  than  judges  of  the  courts  have  been 
termed  quasi-judicial  or  discretionary,  but  if  they  be  judicial  in  their  nature, 
the  officer  may  be  said  to  act  judicially  and  he  is  exempt  from  liability  for  his 
own  acts.  What  are  judicial  powers  has  been  defined  as  authority  to  hear  and 
determine  questions  in  which  the  rights  of  persons  or  property  or  the  pro- 
priety of  doing  an  act  are  the  subject  matters  of  an  adjudication.  Official 
actions  which  are  the  result  of  judgment  or  discretion  are  judicial  acts.2 

1  Meechem's  Public  Officers,  §  588.  em's  Public  Officers,  §  588;  Edwards  v. 

2  Grider  v.  Tally,  77  Ala.  422;  Meech-      Ferguson,  73  Mo.  686  [1881],  many  cases 

*  See  Sees.  179,  180,  supra.  \  See  Sees.  172-180. 

238 


§  246.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  289 

The  fact  that  the  person  often  or  usually  acts  ministerially  is  immate- 
rial; he  is  equally  exempt  from  liability  in  those  cases  in  which  he  acts 
judicially.1  The  principle  embraces  the  actions  of  arbitrators  in  their  de- 
cisions upon  the  controversies  submitted  to  them;3  of  jurors  in  their  delib- 
erations and  verdicts;  of  aldermen  in  determining  who  shall  be  given  a 
contract  for  work.8 

245.  Attempts  have  been  Made  to  Discriminate  between  Judges  in  Court 
and  Judicial  Officers. — "  An  attempt/'  says  Dillon  in  his  Municipal  Corpora- 
tions, "  has  been  made  in  some  cases  to  make  a  distinction  between  those 
officers  whose  duties  lie  outside  the  domain  of  courts— the  so-called  quasi- 
judicial  officers — and  the  judges  of  courts,  to  the  effect  that  while  the  latter 
are  exempt,  the  former  may  be  made  liable  if  their  motives  were  corrupt  or 
malicious." 4     This  distinction  however  he  believes  not  to  be  well  founded. 
If  the  action  is  really  judicial,  the  immunity  which  adheres  to  judicial  action 
should  be  applied  whether  the  officer  sits  upon  the  bench  of  a  regular  estab- 
lished court  or  not.     If  the  action  can  be  maintained  by  the  allegation  of 
improper  motives,  no  litigant  would  fail  to  allege  them,  and  the  public  officer 
might  be  constantly  called  upon  to  defend  himself  from  actions  brought 
with  motives  fully  as  malicious  as  those  which  are  alleged  to  have  inspired 
him.     Public  policy  requires  that  all  judicial  action  shall  be  exempt  from 
question  in  private  suits,  and  the  best  considered  cases  so  declare  the  rule.* 
The  reasons  given  apply  with  equal  force  to  all  judicial  action,  to  arbitrators,* 
to  quasi-judicial  officers,7  and  to  members  of  a  common  council  who  have 
willfully  and  corruptly  refused  to  accept  a  bidder's  proposal  for  doing  certain 
public   work.     It  is    said   "to  be    the   well-settled   rule  of    law   that   no 
public  officer  is  responsible  in  a  civil  suit  for  a  judicial  determination,  how- 
ever erroneous  or  wrong  it  may  be,  or  however  malicious  even  the  motive 
which  produced  it." 8     In  another  case  the  rule  was  said  to  extend  to  judges 
from  the  highest  to  the  lowest;  to  jurors  and  to  all  public  officers  whatever 
name  they  bear  in  the  exercise  of  judicial  power.9 

246.  Engineer's  or  Architect's  Judicial  Status. — It  is  a  universal  custom 
in  construction  contracts  to  constitute  the  engineer  or  architect  a  referee, 
umpire  or  arbitrator  for  the  determination  of  questions  in  dispute,  or  of 
matters  of  facts  necessary  to  be  determined  in  order  to  complete  the  works 
or  to  pay  for  them.     In  determining  such  questions  the  engineer  or  archi- 
tect acts  judicially.     He  is  in  much  the  same  position  as  a  judge,  and  should 

cited  by  Attorneys  for  Apellants;  Board  of  ing  v.  Robinson,  3  Gush.  543;  Gregory  v. 

Regents  in  erecting  school  buildings,  Wall  Brooks,  37  Conn.  365. 

v.  Trumball,  16  Mich.  228;  Assessor,  Siebe  6  Meechem's    Public     Officers,    §    588; 

v.  San  Francisco  (Cal.),  46  Pac.  Rep.  456.  Bradley  v.  Fisher,  13  Wall.  (U.  S.)  335. 

1  Meechem's  Public  Officers,  §  588.  6  Jones  v.  Brown,  54  Iowa  74. 

2  Jones  v.  Brown,  54  Iowa  74;  Pappa  v.  7  Chamberlain  v.  Clayton,  56  Iowa  331. 
Rose,  L.  R.  7  C.  P.  525.  8  East  River  Gas  L.  Co.  v.  Donnelly,  93 

3  East  River  Gas  L.  Co.  v.  Donnelly,  25  N.  Y.   557;    semble,   Jones  v.   Brown,  54 
Hun  614;  see  Dillon's  Municipal  Corp'ns.  Iowa  74. 

4  Hoggatt  v.  Bigley,  6  Humph.  (Tenn.)  9  Weaver  v.  Devendorf,  3  Den.  (N.  Y.) 
236;  Baker  v.  State,  27  Ind.  485;  Chicker-  117;  Turpen  v.  Booth,  56  Cal.  65. 


240        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  246. 

have  the  same  protection.  His  judgment  should  be  rendered  free  from  the 
dictations  of  other  judges;  it  should  be  a  result  of  his  own  honest  convic- 
tions and  studied  conclusions;  he  should  act  without  fear  of  subsequent  pen- 
alty, and  should  be  exempt  from  annoying  litigation  before  other  tribunals 
on  account  of  his  decisions.  Such  is  the  established  law.  The  engineer  or 
architect  need  not  be  an  arbitrator  in  the  strictest  sense,  it  is  enough  if  he 
be  in  the  position  of  an  arbitrator;  if  he  be  a  person  by  whose  decisions  two 
parties,  having  a  difference,  have  agreed  to  be  bound.  If  he  undertakes  to 
give  a  decision  between  two  parties  as  to  any  matter,  though  he  may  not  be 
an  arbitrator  in  a  strict  sense  of  the  word  and  is  not  bound  to  exercise  all 
the  judicial  functions  that  an  arbitrator  would  have  to  exercise,  nevertheless 
he  is  not  liable  to  an  action  for  want  of  skill.1 

In  such  cases  it  was  found  so  difficult  to  discriminate  between  want  of 
skill  and  negligence  that  it  was  later  held  that  the  engineer  or  architect, 
when  acting  judically  as  a  referree,  is  not  liable  for  want  of  care  or  negli- 
gence; that  the  parties  having  submitted  questions  for  his  determination  and 
having  agreed  to  be  bound  by  his  decisions,  must  abide  by  it.2  It  has  been 
intimated  by  excellent  authority  that  an  arbitrator  would  not  be  liable  to  an 
action  even  for  misconduct,  and  he  sustained  the  proposition  by  the  state- 
ment that  he  could  find  no  case  in  which  such  an  action  had  been  brought.' 
Justice  Brett,  in  regard  to  the  referee  being  a  professional  man,  said :  "  I 
apprehend  that  the  principle  of  law  which  forbids  an  action  for  want  of  skill 
or  care  against  an  arbitrator  or  a  ^mst-arbitrator  is  just  as  applicable  to  a 
skilled  or  professional  arbitrator  as  to  one  that  is  unskilled  and  unprofes- 
sional, and  that  the  fact  of  its  being  his  business  makes  no  differ- 
ence. This  case  must  occur  constantly.  It  must  constantly  happen  that 
parties  are  dissatisfied  with  the  decision  of  an  arbitrator  or  ^w^m'-arbitrator, 
and  yet  we  find,  notwithstanding  the  facility  with  which  speculative  actions 
for  negligence  are  brought  on  the  slenderest  grounds,  that  there  is  no  pre- 
cedent for  such  an  action  for  negligence,  and  I  am  not  disposed  to  lay  it 
down  for  the  first  time  that  such  an  action  is  maintainable."  * 

No  action  can  be  brought  by  the  contractor  at  law,  against  the  engineer 
for  not  certifying,  where  the  contractor's  remuneration  has  been  made,  by 
his  contract,  contingent  upon  his  obtaining  the  engineer's  certificate  that  the 
work  bargained  for  has  been  executed,  if  the  engineer  was  not  a  party  to  the 
contract,  even  though  the  engineer's  refusal  to  certify  has  been  the  result  of 
fraud  or  even  of  collusion  with  his  employers.  The  proper  course  for  the 
contractor  to  adopt  is  to  proceed  against  both  the  engineer  and  company; 
whether  in  a  court  of  equity  or  at  law  he  must  include  the  company  who 
contracted  with  him.6 

1  Pappa  v.  Rose,  L.  R.  7  C.  P.  32,  525.  4  Tharsis    Sulphur   &  Copper    Co.    v. 

2  Tharsis  8.  &  C.  Co.  v.  Loftus,  L.  R.  8  Loftus,  L.  R.  8  C.  P.  Cas.  1  [18721;  Pappa 
C.  P.  1  [1872].  v.  Rose,  L.  R.  7  C.  P.  32,  525. 

3  Watson  on  Arbitration    [3d  ed.],  112;  6  Speck  v.  Phillips,  5  M.  &  W.  283. 
Speck  v.  Phillips,  5  M.  &  W.  283. 


g  247.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  241 

247.  Engineer  or  Architect  Must  Not  Act  Fraudulently.— The  miscon- 
duct must  not  amount  to  fraud  or  collusion  with  one  of  the  parties  against 
the  interests  of  the  other  party.  For  a  later  English  case  is  authority  for  the 
statement  that  an  action  of  tort  will  lie  by  a  contractor  against  an  architect 
who  fraudulently  and  in  collusion  with  the  owner  refuses  to  certify  that  he 
is  satisfied  with  the  work  done,  whereby  the  contractor  is  unable  to  obtain 
payment  for  his  work.1  No  such  action  had  previously  been  allowed,  but  an 
action  had  been  allowed  for  maliciously  inducing  another  to  break  a  con- 
tract,2 and  the  action  was  permitted  on  that  precedent.  An  opinion  has 
also  been  expressed  that  an  action  would  lie  against  parties  who  fraudulently 
prevented  the  architect  from  giving  his  certificate.3  In  the  absence  of  fraud 
or  collusion,  the  contractor  has  no  remedy  against  the  engineer  or  archi- 
tect.4 

In  a  comparatively  recent  case,  in  which  a  contractor  brought  suit  against 
an  architect,  an  allegation  that  the  contractor  had  signed  the  contract  under 
the  belief  and  expectation,  as  the  architect  knew,  that  he,  the  architect, 
would  use  due  care  and  skill  in  making  his  estimates,  but  that  he  did  not 
use  due  care  and  skill  in  ascertaining  the  quantities,  and  neglected  and 
refused  to  ascertain  them  in  the  manner  provided,  and  had  certified  know- 
ingly and  negligently  for  a  much  less  sum  than  was  the  net  balance  payable 
to  the  contractor,  was  held  not  a  sufficient  allegation  of  fraud  to  sustain  the 
action.  That  the  functions  of  the  architect  in  ascertaining  the  amount  due 
the  contractor  were  not  merely  ministerial,  but  such  as  required  the  exercise 
of  professional  judgment,  opinion  and  skill,  and  that  he  therefore  occupied 
the  position  of  arbitrator  against  whom  the  action  would  not  lie,  no  fraud  or 
collusion  being  charged.5  A  further  allegation  that  the  architect  refused  to 
reconsider  the  certificate  and  estimate  and  to  allow  the  contractor  to  point 
out  to  him  the  errors  in  the  bills  of  qantities,  gave  him  no  more  rights  to  an 
action  against  the  architect.6  The  judge  said:  "  I  do  not  intend  to  hold  that 
to  all  intents  and  purposes  the  architect  is  an  arbitrator,  but  I  think  the 
duties  are  analogous  to  those  of  an  arbitrator.  His  duties  are  matters  of 
judgment  requiring  the  exercise  of  opinion  and  discretion;  and  it  appears  to 
me  that  the  architect  in  this  case  is  an  arbitrator  to  this  extent,  that  he  is  from 
beginning  to  end  to  keep  an  eye  on  the  work,  in  order  to  exercise  a  judg- 
ment in  the  matter." 7  If  -fraud,  collusion,  or  bad  faith  had  been  charged, 
the  court  expressed  the  opinion  that  an  action  could  have  been  had  against 
the  architect;  and  it  seems  one  could  have  been  maintained  if  the  architect's 

1  Ludbrook  v.  Barrett,  36  L.  T.  R    616      [1865]. 

[1877],  see  also  Byrne  v.  Sisters  of  Eliza-  5  Stevenson  v.  Watson,  L.  R.  4C.  P.  D. 

beth,  16  Vroom  213;  Chism  v.  Schipper,  51  148  [1879]. 

N.  J.  Law  1  [1888],  Atty's  arguments.  6  Stevenson  v.  Watson,  supra. 

2  Lumleg  v.  Gye,  2  E.  &  B.  216.  7  Pappa  «.  Rose,  L.  R.  7  C.  P.  32,  525. 
3Milner«.  Field,  5  Exch.  829;  accord,  The  Tharsis  Sulpur    &  Copper    Co.     v. 

Batterby  v.  Vyse,  2  H.  &  C.  42.  Loftus,  42  L.  J.  Rep.  (C.  P.)  6,  and  cases 

4  Clarke  v.  Watson,  18  C.  B.  (N.  S.)  278      cited. 


242      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  248. 

duties  had  been  merely  ministerial.1  Russell,  in  his  Law  of  Awards,  lays  the 
same  law  down,  and  says :  "  An  action  will  not  lie  against  an  arbitrator  for 
want  of  skill  nor  of  negligence  in  making  his  award,  nor  for  the  like  cause 
against  an  engineer  or  architect  employed  to  determine  matters  as  a  quasi- 
arbitrator; 2  but  an  action  will  lie  for  fraudulently  withholding  his  certificates, 
under  which  alone  the  contractor  was  entitled  to  payment,  though  no  costs 
be  prayed  against  the  engineer."  ! 

When  an  engineer  is  made  a  co-defendant  with  his  company,  he  is  not  in 
general  bound  to  give  his  reasons  for  making  his  award.  An  award  may  be 
a  bar  to  such  discovery  in  a  suit  in  equity,  but  if  fraud,  corruption,  or  par- 
tiality be  charged,  they  must  support  their  plea  by  an  answer  showing  them- 
selves to  be  impartial  and  not  corrupt,  for  it  would  be  inequitable  to  leave 
them  at  liberty  to  cover  their  own  misbehavior  by  their  own  award.  So  if 
fraud  and  collusion  are  imputed,  and  the  certificates  are  declared  insuffi- 
cient, and  certain  items  specified  as  evidence  of  the  fraud,  the  engineer 
cannot  protect  himself,  by  his  character  of  arbitrator,  by  denying  the 
fraud  in  general;  in  his  answer  he  should  answer  as  to  the  particular  items 
specified.3 

248,  Engineer  is  Liable  to  His  Employer,  when  He  may  Not  be  Liable  to- 
Contractor. — A  later  Canadian  case,  after  a  careful  review  of  the  authorities, 
lays  down  the  same  law,  but  distinguishes  between  an  action  against  the 
architect  by  a  contractor  and  one  by  his  employer.  With  the  contractor 
there  is  no  implied  contract  to  exercise  an  ordinary  degree  of  care  and  skill, 
while  with  the  owner  he  is  in  the  same  position  as  any  other  professional  or 
skilled  person,  and  is  responsible  if  he  omits  to  perform  his  work  with  an 
ordinary  and  reasonable  degree  of  skill  and  care,  whether  it  be  in  the  prep- 
aration of  plans  and  specifications  or  in  the  doing  of  any  other  professional 
work  for  reward.4  In  delivering  the  opinion,  his  lordship,  the  justice,  said : 
"I  am  prepared  to  rule  that  you  cannot  recover  any  damages  from  the 
architect  for  any  loss  you  have  sustained  in  having  a  poor  building  without 
fraud.  The  only  question  that  you  can  show  is  that  he  has  not  done  the 
work  for  which  he  charged ;  that  is  all.  The  case  is  exactly  the  same  as  one 
in  which  there  is  an  arbitrator.  I  have  always  thought  the  position  of  an 
arbitrator  a  most  absurd  one.  He  has  powers  given  to  him  that  are  given  to 
no  other  being  in  the  world,  and  it  results  in  hard  feeling  and  litigation ; 
but  the  parties,  if  they  choose  to  enter  into  such  a  contract,  must  abide  by 
it.  Having  put  him  in,  the  position  of  sole  arbitrator,  they  have  to  show,  if 
they  want  to  hold  him  liable,  not  that  he  had  exercised  a  very  poor  judg. 
ment,  or  that  he  is  unskillful,  but  that  he  has  been  dishonest  and  fraudu- 
lent. If  you  can  show  me  he  did  not  do  the  work  for  which  he  has  charged, 
he  cannot  recover.  If  you  show  he  did  it  negligently,  I  am  afraid  you  have 

1  Stevenson  v.  Watson,  48  L.  J.  (N.  S.)          3  Russell  Law  of  Awards  502. 

318  [1879].  ->Badgley  «.  Dickson,  13  Ont.  App.  494 

2  Russell  Law  of  Awards  497.  [1887]. 


§  248.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  243 

no  action.  The  present  case  is,  in  my  opinion,  broadly  distinguished  from 
those  relied  upon  by  the  contractor  in  support  of  his  claim.  The  principle 
affirmed  or  established  by  those  cases  is,  that  it  is  not  consistent  with  pub- 
lic policy  that  an  action  should  lie  against  an  arbitrator  or  ^^m'-arbitrator,. 
whose  functions  are  of  a  judicial  nature,  for  negligence  or  want  of  skill  in 
the  performance  of  his  duty  as  such.  The  justice  and  expediency  of  such  a 
rule  is  manifest.  When  two  parties  agree  to  be  bound  by  the  decision  of  a 
third  party  on  a  matter  in  dispute  between  them,  or  upon  which  a  liability  is 
to  arise  on  the  part  of  one  of  them,  they  take  him,  as  it  is  said,  for  better  or 
worse,  and  there  is  no  implied  obligation  on  his  part  to  bring  any  particular 
amount  of  care  and  skill  to  the  performance  of  the  duty,  if  he  undertakes 
it.  All  that  is  required  of  him  is,  that  he  shall  act  honestly  and  faithfully 
to  the  best  of  his  judgment/7 

As  a  professional  engineer,  "  he  was  bound  to  exercise  ordinary  care  and 
skill,  but  when  he  became  the  person  who  was  to  determine  a  dispute,  he 
was  a  person  filling  a  position  which  brought  him  within  an  exception  well 
known  to  the  law  of  England,  viz.,  that  a  person  who  is  appointed,  and  is 
acting  as  an  arbitrator  to  determine  a  matter  in  difference  between  two  or 
more  persons,  does  not  enter  into  an  implied  promise  to  bring  to  the  perform-, 
ance  of  the  duty  entrusted  to  him  a  due  and  reasonable  amount  of  skill  and 
knowledge.  The  question  is  one  of  implied  undertaking,  and  the  law  says 
there  is  none  such/' ' 

The  case  of  Stevenson  v.  Watson,  4  C.  P.  D.  148,  was  an  action  of  a  con- 
tractor, under  a  building  contract,  against  the  architect  of  the  building 
for  not  using  due  care  and  skill  in  measuring  quantities  and  ascertaining 
the  amount  to  be  paid  by  the  owners,  and  for  negligently  certifying  for  a 
much  less  sum  than  the  balance  due  to  the  plaintiff.  The  contract  (to- 
which  the  architect  was  not  a  party)  substantially  provided  that  the  con- 
tractor and  the  owners  should  be  bound  to  leave  all  questions  or  matters  in 
dispute  which  might  arise  during  the  progress  of  the  works  to  the  architect, 
whose  decisions  would  be  final  and  binding  upon  all  parties,  and  that  the 
contractor  would  be  paid  upon  the  certificate  of  the  architect.  It  was  held 
that  the  architect  was  not  liable,  on  the  ground,  as  stated  by  Lord  Coleridge,. 
0.  J.,  that  it  was  within  the  authority  of  the  cases  which  decide  "  that  where, 
the  exercise  of  judgment  or  opinion  on  the  part  of  the  third  person  is  necessary 
between  two  persons,  such  as  a  seller  and  buyer,  and  in  the  opinion  of  the 
seller  that  judgment  has  been  exercised  wrongly,  or  improperly,  or  negli- 
gently, or  ignorantly,  an  action  will  not  lie  against  the  person  in  that  posi- 
tion/7 It  was  pointed  out  that  there  was  no  direct  contract  between  the 
contractor  and  the  architect,  and  Justice  Denman  said  that  it  appeared  to 
him  that  the  architect  did  not,  by  undertaking  the  office  of  arbitrator, 
undertake  any  duty  amounting  to  more  than  that  of  honestly  performing 
his  functions. 

'Brett,  J.,  in  Papa  v.  Kose,  L.  R.  7  C.  P.  40. 


244    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  249. 

In  all  these  cases  and  others  which  might  be  cited  of  a  similar  nature,  it 
will  be  seen  that  the  action  was  against  the  arbitrator,  founded  upon  the 
breach  of  a  supposed  implied  undertaking  to  perform  his  duty  as  such  with 
an  ordinary  degree  of  care  and  skill,  and  the  action  failed  because  no  such 
undertaking  was  implied  by  law,  and  there  was  no  contract,  expressed  or 
implied,  between  the  parties  out  of  which  any  other  duty  or  liability  could 
arise.  In  this  case  the  act  and  counter-claim  are  based  upon  a  distinct  con- 
tract, by  which  the  architect  was  employed  as  a  skilled  professional  person 
to  perform  certain  services  for  reward,  and  he  is  not,  in  my  opinion,  absolved 
from  the  usual  obligations  attaching  to  such  a  contract  between  his  employer 
arid  the  builder.  He  may  as  arbitrator  have  determined  between  them  as  to 
the  performance  of  that  contract,  in  a  manner  which  assumes  that  he  has 
properly  performed  his  own  duties.1 

249.  Engineer  or  Architect  may  Owe  a  Double  Duty  to  His  Employer, 
viz.,  as  an  Arbitrator  and  as  a  Professional  Man. — It  is  said  to  be  an  anomaly 
that  while  the  plaintiff  cannot  be  sued  in  his  character  of  arbitrator  or  quasi- 
arbitrator,  he  may  yet  be  liable  for  a  loss  occasioned  by  his  want  of  skill  or 
want  of  care  in  another  form  of  action.  The  answer  simply  is  that  he  has 
entered  into  a  contract  which  makes  him  so.  It  would  be  an  extraordinary 
result  if  we  were  obliged  to  hold  that  the  contract  which  the  owner  makes 
with  the  architect  for  his  own  protection  is  neutralized  by  or  inconsistent 
with  a  provision  introduced  into  a  different  contract  between  the  owner  and 
the  builder  for  the  purpose  of  preventing  or  settling  disputes  as  between 
themselves.  As  architect  he  is  in  the  same  position  as  any  other  professional 
or  skilled  person,  and  whether  it  be  in  the  preparation  of  plans  and  specifi- 
cation, or  the  doing  of  any  other  professional  work  for  reward,  he  is  respon- 
sible if  he  omits  to  do  it  with  an  ordinary  degree  of  care  and  skill.9 

The  case  is  authority  for  the  statement  that  the  owner  does  sacrifice  other 
rights  and  privileges,  and  it  is  not  clear  why  he  might  not  sacrifice  his  con- 
tract rights  as  well.  The  architect  is  responsible  to  his  owner  for  the  defect- 
ive and  inferior  manner  in  which  the  work  had  been  done,  and  the  inferior 
materials  employed,  which  was  the  result  of  his  negligence  and  want  of  care 
and  skill  in  the  performance  of  the  duty  which  he  had  been  retained  to  do, 
and  which  he  had  undertaken  to  do.1 

The  application  of  the  rule  seems  to  have  been  anticipated  in  a  recent 
Illinois  case,  but  it  was  distinctly  decided  that  he  was  bound  only  to  exer- 
cise so  much  care  and  skill  as  he  had  bound  himself  to  bestow  upon 
the  work.  That  it  was  not  a  question  to  be  left  to  the  judgment  and 
caprice  of  the  jury  to  determine  how  much  care  and  skill  ought  to  be  exer- 

1  Badgley  v.  Dickinson,  13  Ontario  App.  ble  to  his  employer  for  want  of  skill  orneg- 
494  [1887].  ligence   in  the  performance  of  a  judicial 

2  Badgley  V.  Dickinson,  13  Ontario  App.  act,  such  as  an  estimate  of  work,  by  which 
494  [1887],    It  is  submitted  that  this  may  both  parties  have  agreed  to  be  bound. 

be  true  enough,  but  would  he  be  responsi- 


§249A.]        ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  245 

cised  by  an  architect  in  superintending  a  building,  but  that  the  jury  should 
decide  from  the  evidence  introduced  what  were  the  duties  undertaken  by 
him  in  his  contract  of  employment  and  required  of  him  by  the  contract  of 
construction.1  It  was  therefore  held  wrong  to  instruct  the  jury  that  a  duty 
was  imposed  upon  the  architect  to  make  a  special  inspection  of  the  work  to 
satisfy  himself  that  the  particular  work  for  which  the  certificate  was  asked 
had  been  done  properly  and  according  to  the  plans  and  specifications  before 
issuing  his  certificate,  no  such  specific  duty  being  imposed  by  the  terms  of 
the  contract.1 

In  a  case  where  general  averages  were  incurred  in  a  ship's  voyage,  and 
it  became  necessary  to  adjust  the  losses,  and  it  was  agreed  to  refer  the  mat- 
ter to  an  average  adjuster,  it  was  held  that  the  adjuster  was  not  liable  for 
want  of  care  in  the  performance  of  his  duties,  as  he  was  acting  in  the 
capacity  of  an  arbitrator  between  the  parties.2 

249A.  Engineer's  or  Architect's  Knowledge  Is  the  Employer's  Knowl- 
edge.— To  be  excused  from  negligence  under  Judge  Cooley's  definition  there 
is  another  duty  which  an  employee  owes  to  his  employer,  and  that  is  a  due 
and  proper  notice  of  those  conditions  and  things  which  precaution  and 
vigilance  would  prompt  him  to  give.  Of  all  classes  of  employees  there  are 
few  on  whom  this  duty  is  more  incumbent  than  upon  the  engineer  and 
architect.  It  is  one  of  the  chief  functions  of  his  office. 

It  does  not,  it  seems,  matter  how  the  engineer  obtains  his  information, 
if  he  obtains  his  knowledge  while  acting  for  his  employer,  and  afterwards, 
while  acting  further,  fails  to  communicate  it,  the  employer  is  as  fully  bound 
as  if  the  communication  had  been  made.  The  possession  of  knowledge, 
however  acquired,  when  acting  for  the  employer,  is  knowledge  to  the  prin- 
cipal.3 The  agent's  obligation  is  just  as  strong  to  disclose  knowledge  when 
derived  in  a  transaction  for  his  own  benefit  as  in  a  transaction  for  the 
benefit  of  his  employer.  What  binds  the  principal  is  the  knowledge  pos- 
sessed by  the  agent  when  he  comes  to  acts,  and  the  principal  is  bound  in 
such  case  whether  it  is  communicated  or  not,  and  without  regard  to  the 
mode  in  which  he  acquired  it.4  However,  it  is  usually  held  that  notice  to 
an  agent  before  the  agency  begun  or  after  it  is  terminated  will  not  affect 
the  employer,  and  the  notice  should  be  within  the  scope  of  his  agency  or 
employment.6 

"  It  is  a  neglect  of  duty  in  an  employee  not  to  give  notice  to  the  proper 
officers  of  his  company  of  any  fact  affecting  the  performance  of  the  duties 
of  the  company  to  the  public  occurring  within  the  department  under  his 
supervision/"  It  was  so  held  when  a  conductor  failed  to  report  the 

1  Vigeant  o.    Scully,   20  Brad  well  (111.  4  Tagg  v.  The  Term.  Nat'l  Bk.,  9  Heisk. 

App.)  437  [1886J.  479  [1872]. 

2Tharsis  8.  &  C.  Co.  v.  Loftus,  L.  R.  8  5  1  Amer.  &  Eng.  Ency.  Law  421. 

C.  P.  Gas.  1  [1872];  and  see  69  Iowa  541;  6  Judge  Cooley,  in  Davis  v.  Detroit  & 

2  Dillon's  Munic.  Corp'ns,  §  237,  note.  Mil.  R.  Co.,  20  Mich.  105  [1870]. 

3  Union  Bank  v.  Campbell,  4  Hun  394. 


246     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§249 A. 

incapacity  of  his  engineman,1  and  when  a  track-repairer  failed  to  advise  his 
company  of  the  condition  of  the  road-bed.  If  he  knows,  or  by  the  proper 
discharge  of  his  duty  should  know,  of  certain  defects,  his  knowledge,  or 
that  which  he  might  have  acquired,  may  be  imputed  to  his  employer,  the 
railroad  company.2 

The  same  rules,  without  doubt,  would  hold  with  regard  to  an  engi- 
neer's knowledge  of  the  road  and  structures  of  a  corporation.  It  has  been 
held  that  a  company  was  chargeable  with  knowledge  and  negligence  for  fail- 
ing to  repair,  when  one  of  its  employees,  whose  duty  it  was  to  observe  the 
condition  of  its  bridges,  or  keep  them  in  repair,  had  actual  or  even  implied 
notice  of  defects  therein,  or  when,  by  the  exercise  of  reasonable  diligence, 
the  employee  would  have  known  of  them.3  So  it  has  been  held  that  a 
notice  to  an  engineer  appointed  by  a  company  to  supervise  and  direct  work 
of  an  alteration  in  the  structure,  supposed  by  the  builders  to  be  an  improve- 
ment, is  a  notice  to  the  company.4 

To  impute  knowledge  to  a  corporation  such  as  would  imply  a  ratifica- 
tion or  an  assent  to  the  acts,  admissions,  or  declarations  of  an  engineer  in 
its  employ  requires  something  more  than  the  knowledge  of  the  engineer 
that  the  work  was  being  done  or  that  it  had  been  done  by  his  orders.6 

The  status  of  an  engineer  or  architect  and  his  relations  to  his  company 
or  employer  when  he  is  on  the  witness  stand  deserves  a  passing  notice. 
The  engineer  or  architect  enjoys  no  such  privileges  in  court  as  his  brother 
attorneys  or  physicians,  though  he  be  employed  in  a  professional  capacity. 
Communications  between  him  and  his  employer  are  not,  it  seems,  privileged. 
He  may  be  required  to  testify  in  regard  to  matters  and  communications 
between  himself  and  his  employer,  and  may  be  required  to  produce  letters 
he  has  written  to  his  employer,  even  though  they  be  of  a  private  and  con- 
fidential nature.8  The  same  is  held  of  a  banker 7  and  of  clerks  and  servants 
in  general.8  Nor  is  the  architect  or  engineer  regarded  as  a  confidential 
agent  of  his  employer  so  as  to  be  liable  for  disclosures  in  regard  to  his  em- 
ployer's intentions  to  build,9  or  where  he  is  to  build,10  if  he  has  neither 
agreed  nor  been  requested  to  keep  such  facts  secret.  It  might  be  a  ground 
for  discharging  him  if  he  were  a  servant  in  the  owner's  regular  employ.* 

1  Davis  v.  Detroit  &  Mill.  R.  Co.,  supra.  ruff  v.  Rochester  &  P.  R.  Co.,  108  N.  Y. 

2  Porter  v.  Han.  &  St.  J.  R.  Co.,  71  Mo.  39;  Wolf  v.  Des  Moines  &  Ft.  D.  R.  Co., 
66  [1879].  64  Iowa  380;  Rentoii  ®.  Mourner.  77  Cal. 

3  46  Iowa  109;  semble,  Indiana  B.  &W.  449. 

Hy.  Co.  v.  Adamson  (Ind.),  15  N.  E.  Rep.  •  Page  v.  Ward,  W.  K  1869-51. 

5  [1888].  7  Lloyd  «.  Freshfield,  2  C.  &  P.  325. 

4  Danville  Bridge  Co.  «.  Poraroy,  15  Pa.  8  19  Amer.  &  Eng.  Ency.  Law  155-156. 
St.  151   [1850];  and  see  O'Brien  v.  Mayor  9  Havens  v.  Donahue  (Cal.),  43Pac.  Rep. 
<N.  Y.  App.),  35  N.  E.   Rep    323;   and  962. 

Halsey  v.  Hobbs  (Ky.),  32  S.  W.  Rep.  415.          10  Green  t>.  Brooks  (Cal.),  22  Pac.  Rep. 
6  Many  cases  cited  by  counsel  in  Wood-      849;  but  see  Wills  v.  Abbey,  27  Tex.  202 

*  See  Sec.  204,  supra. 


CHAPTEE  XII. 
LIABILITY  OF  ENGINEER  OR  ARCHITECT  WHEN  A  PUBLIC   OFFICER. 

250.  Position  of  a  Public  Officer. — Another  capacity  in  which  one  is 
exempt  from  liability  for  the  want  of  care  (?)  and  skill  is  that  of  a  public 
officer.  What  has  been  said  of  judicial  or  discretionary  duties  in  general 
applies  equally  to  public  officers  when  their  duties  are  judicial  or  discre- 
tionary, but  there  are  further  considerations  in  the  case  of  public  officers  not 
present  in  the  employment  of  the  private  individual.  If  public  officers  were 
liable  for  the  want  of  skill  and  capacity,  or  were  likely  to  be  called  upon  to  meet 
obligations  which  they  assume  on  behalf  of  and  for,  the  benefit  of  the  public, 
it  is  safe  to  say  that  the  full  ranks  of  office-seekers  would  be  greatly  reduced. 
An  officer  who  has  been  elected  to  his  position,  and  who  must  undertake 
every  task  presented  within  the  scope  of  his  duties,  and  who  has  no  choice 
as  to  whether  he  will  act  or  decline  to  act,  and  who  must  serve  whoever  calls 
upon  him,  is  in  a  different  position  from  a  servant  or  professional  man  who 
solicits  employment,  and  can  serve  or  not,  as  he  will.  The  former  is  not 
subject  to  an  action  at  law  by  an  individual  unless  he  has  failed  to  perform 
some  duty  which  he  owes  specially  to  that  individual.* 

The  irresponsibility  of  public  officers  is  often  a  source  of  aggravation  to 
a  private  person,  who  may  be  required  to  stand  outside  of  an  iron  partition 
and  pay  his  taxes,  or  settle  damages,  while  the  county  treasurer1  or  city 
engineer  a  within  the  cage  smilingly  tells  him  he  is  "very  sorry,  but  that  he 
can't  help  it,  for  mistakes  will  happen."  ISTo  doubt  better  service  would  be 
had  if  public  officers  were  responsible  to  individuals  for  their  misconduct 
and  incapacity  in  office,  where  such  individual  has  suffered  in  consequence 
thereof;  but  public  policy  seems  to  require  that  they  should  be  exempt  from 
civil  action,  and  that  they  be  liable  only  through  public  prosecution.3 

Officers  acting  in  a  judicial  capacity  are  exempt  from  liability  for  their 
act.f  They  are  not  liable  for  injuries  to  persons  when  the  act  is  purely  min- 
isterial if  they  act  within  their  authority  and  it  is  done  with  due  care.  How- 
ever, the  general  exemption  of  an  officer  from  liability  for  negligence,  want 
of  skill  or  care,  holds  only  when  the  officer  is  acting  in  a  governmental  or 
political  capacity,4  and  there  are  many  cases  which  deny  the  exemption  alto- 

1  See  State  «.  Harris,  89  Ind.  363.  z  19  Arner.  &  Eng.  Ency.  Law  483. 

2  See  McCarthy  v.  Bauer,  3  Kans.  237         4  19  Amer.  &Eng.  Ency.  Law  484,  cases 
[1865].  cited. 

*  See  Sec.  36,  supra.  \  See  Sees.  344-249,  supra. 

247 


248        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  251. 

gether,  except  when  the  act  complained  of  is  a  judicial  act  or  one  involving- 
the  discretion  of  the  officer.1 

251.  County  Officers  and  their  Liability. — County  officers  are  frequently 
held  not  liable  in  civil  actions  for  injuries  sustained  and  caused  by  the  neg- 
lect, want  of  care,  or  lack  of  skill  of  the  officer.     It  has  been  held  that  the 
judges  and  justices  of  a  county  court  were  not  liable  for  injuries  to  a  traveler 
from  the  falling  of  a  bridge  constituting  a  part  of  the  public  highway  and 
under  the  control  of  the  court,  even  if  they  were  guilty  of  gross  negligence 
in  failing  to  repair  the  bridge  or  give  proper  notice  of  its  condition.2     In 
England  no  action  lies  against  the  county  surveyor  for  damages  resulting 
from  the  want  of  repair  to  a  county  bridge,3  and  a  county  treasurer  in  levy- 
ing taxes  has  been  held  not  liable  for  his  failure  to  properly  distribute  the 
taxes  between  the  real  property  of  a  mortgagor  and  the  personal  property  of 
the  mortgagee.4 

252.  County  and  Municipal  Officers  Compared. — The  liability  of  a  munici- 
pal officer  as  distinguished  from  that  of  a  county  officer,  has  been  based  upon 
the  distinction  between  municipal  corporation   and  county  organization s, 
described  as  follows:  "  Counties  are  local  subdivisions  of  a  state,  created  by 
the  sovereign  power  of  the  state  of  its  own  sovereign  will,  without  the  par- 
ticular solicitation,  consent,  or  concurrent  action  of  the  people  who  inhabit 
them.     The  former  organization  is  asked  for^or  at  least  assented  to,  by  the 
people  it  embraces;  the  latter  is  superimposed  by  a  sovereign  and  paramount 
authority.     A  municipal  corporation  proper  is  created  mainly  for  the  inter- 
est, advantage,  and  convenience  of  the  special  locality  and  its  people.     A 
county  organization  is  created  almost  exclusively  with  a  view  to  the  policy  of 
the  state  at  large  for  purposes  of  political  organization,  and  civil  adminis- 
tration in  matters  of  finance,  of  education,  of  provisions  for  the  poor,  of  mili- 
tary organization,  of  the  means  of  travel  and  transport,  and  especially  for  the 
general   administration    of   justice.      With  scarcely  an  exception,  all  the 
powers  and  functions  of  the  county  organizations  have  a  direct  and  exclu- 
sive reference  to  the  general  policy  of  the  state,  and  are  in  fact  but  a  branch 
of  the  general  administration  of  that  policy."  '     According  to  the  principles- 
of  the  common  law,  an  action  for  indemnity  cannot  be  maintained  against 
the  county  court  or  against  the  judges  individually  for  personal  liability. 

253.  Liability  of  a  Public  Officer  for  the  Acts  of  His  Assistants.— Pub- 
lic officers  of  the  government  are  not  liable  for  acts  of  assistants  and  sub- 
ordinates.    Persons  acting  in  the  capacity  of  public  agents,  engaged  in  the 
public  service  and  acting  solely  for  the  public  benefit,  although  not  strictly 
filling  the  character  of  officers  or  agents  of  the  government,  are  also  exempt 
from  liability.     Thus  it  has  been  held  that  overseers  of  highways  intrusted 

>  19  Amer.  &  Eng.  Ency.  Law  484.  4  State  v.  Harris,  89  Ind.  363. 

2  Wheatley  v.  Mercer,  9  Bush  (Ky.),  704  5  Commissioners  of  Ham.  Co.  v.  Mighels, 

[1873].  7  Ohio  St.   109;  Wheatley  v.   Mercer,  J> 

'M'Kinnon   v.    PensoD,   8   Exch.    319  Bush  (Ky.)  704. 
[1853] 


§  254.]          ENGINEER' 8  AND  ARCHITECT'S  EMPLOYMENT.  249 

with  the  supervision  of  highways,  discharging  the  duties  gratuitously  and 
being  personally  guilty  of  no  negligence,  are  not  responsible  for  an  injury 
sustained  by  an  individual  through  the  negligence  of  workmen  employed 
under  them.1  Trustees  and  commissioners  acting  gratuitously  for  the  bene- 
fit of  the  public  and  intrusted  with  the  conduct  of  public  works  are  not- 
liable  for  an  injury  occasioned  by  the  negligence  or  unskillfulness  of  work- 
men and  contractor  necessarily  employed  by  them  in  the  execution  of  the 
work. a 

In  keeping  with  this  policy,  a  surveyor  of  highways  elected  by  the  town 
as  a  public  and  not  a  municipal  officer,  has  been  held  liable  in  damages  for 
his  wrongful  acts  only  when  they  are  wanton,  malicious,  or  improper  acts  in 
making  or  repairing  highways  in  his  district;3  a  superintendent  of  streets 
in  a  city  has  been  held  liable  for  damages  resulting  from  his  negligence  or 
unskillfulness  in  repairing  a  sewer,  notwithstanding  his  official  capacity ; 4 
and  a  building  inspector  for  nonperformance  of  his  duties,  which  required 
him  to  inspect  the  buildings  and  see  that  they  were  erected  as  provided  by 
ordinance.5  A  clause  in  a  contract  for  the  construction  of  a  sewer  which 
guarantees  the  street  superintendent  and  his  sureties  immunity  from  lia- 
bility does  not  render  the  contract  void,  as  it  could  not  affect  persons  injured 
by  the  acts  of  the  superintendent.' 

254.  State  Employees  Held  Liable  for  Negligence. — A  superintendent  of 
repairs  of  the  state  canals  has  been  held  personally  liable  for  damages  sus- 
tained by  an  individual  through  the  negligence  of  workman  making  repairs. 
To  have  an  action  for  his  failure  to  make  repairs,  it  must  be  shown,  however, 
that  it  was  the  superintendent's  duty  to  make  repairs,  that  he  had  funds  to 
make  them  with,  and  that  he  was  the  officer  to  make  them;  but  negligence 
and  mismanagement  alone  need  be  shown  for  misconduct  in  making  repairs.7 
The  same  has  been  held  of  an  officer  who  was  charged  with  the  duty  of  keep- 
ing a  street  in  repair. 8  So,  too,  when  the  state  canal  board  let  the  repairs 
of  the  state  canals  by  contract  to  a  contractor  invested  with  the  powers  of  a 
non-judicial  officer,  the  latter  was  held  liable  to  one  who  sustained  special 
damage  from  a  neglect  to  do  his  duty  and  fix  a  lock-gate  that  was  defective 
and  out  of  repair.9  So  if  a  contractor  has  been  employed  by  a  board  of 
health  to  do  a  particular  act,  and  does  it  negligently,  he  may  be  held  liable 
for  the  consequences.10 

1  Meechem  on  Public    Officers,  §    594;          6  Rauer  v.   Lowe  (Cal.),  107  Cal.   229, 
Holliday  v.  St.  Leonard,  11  Com.  B.  (N.      40  Pac.  Rep.  337  [1895]. 

S.)  192.  7  Shepherd  v.  Lincoln,  17  Wend.  (N.  Y.) 

2  Hall  v.  Smith,  2  Bing.  156;  Harris  «.       250. 

Baker,  4  Maule  &  S.  27;  Sutton  v.  Clarke,  6  8  Bennett  v.  Whitney,  94  N.  Y.  302;  Rec- 

Taunt.  34;  Holliday  v.  St.  Leonard,  supra.  toru.  Pierce,  3  Thomp.  &  C.  (N.  Y.)  416; 

8Rowe  v.  Addison,  34  N.  H.  306,  312,  and  a  bridge,  People  v.  Adsit,  2  Hill(K  Y.) 

and  cases  cited.  619;  cases  cited,  19  Amer.  &  Eng.   Eucy. 

.4  Butter  v.  Ashworth  (Cal.),  36  Pac.  Rep.  Law  495. 

922.  9  Robinson  «.  Chamberlain,  34  N.  Y.  389. 

8  Merritt  v.   McNally  (Mont.),   36  Pac.  10  Arthy  v.  Coleman,  8  E.  &   B.  1092 

Rep.  44.  [1857]. 


250        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  255. 

255.  Public  Officers  and  their  Liability  upon  Contracts  Executed  for  the 
State.  —  When  a  man  acting  in  the  capacity  of  a  public  officer  makes  contracts 
or  signs  obligations,  there  is  a  strong  presumption  of  law  that  he  does  not 
intend  to  bind  himself  personally,  nor  that  the  contractor  looks  to  him  indi- 
vidually to  be  responsible.  The  government  can  act  only  through  its  officers 
and  agents,  and  if  they  were  held  personally  liable  on  the  obligations  they 
assume  for  the  government,  it  might  be  difficult  to  secure  the  services  of 
capable  and  responsible  men.  Public  policy  demands  that  they  be  exempt 
from  liability.1 

A  public  officer  must  disclose  the  fact  that  he  acts  as  an  officer  or  agent, 
for  if  it  be  not  known  to  the  other  party  he  will  find  himself  bound.  What 
was  said  of  agents  under  parties,  in  chapter  on  Contracts,  will  hold  for 
public  officers.2  *  Where  officers  of  a  public  or  municipal  corporation  acting 
officially  enter  into  a  contract  under  an  innocent  mistake  of  law,  in  which 
the  other  contracting  party  equally  participates,  with  equal  opportunities  of 
knowledge,  neither  party  at  the  time  looking  to  personal  liability,  the  offi- 
cers are  not  personally  liable  ;  and  the  same  rule  applies  to  the  officers  of  a 
public  body  which  is  not  a  corporation,  such  as  a  school  district.3 

If  a  person  sign  his  own  name  to  a  note  followed  with  '  '  for  the  select- 
men,"4 he  will  be  liable  personally  upon  the  obligation.6 

An  English  case  shows  how  strong  this  presumption  is  with  some  jus- 
tices. It  was  held  that  a  public  officer  is  not  responsible  on  any  contract  he 
makes  in  that  capacity,  and  whenever  his  contract  or  agreement  is  connected 
with  the  subject  fairly  within  the  scope  of  his  authority,  it  shall  be  intended 
to  be  made  officially  and  in  his  public  character,  unless  the  contrary  appears 
by  an  absolute  and  unqualified  agreement  to  be  personally  liable.  It  was  so 
held  when  a  contractor  had  done  extra  work  to  preserve  a  public  work  not 
embraced  in  his  contract,  upon  the  assurance  of  a  railway  commissioner 
having  charge  of  the  work,  that  he  would  pay  him  ;  and  afterwards  on 
application  to  him  for  pay,  he  said  he  would  see  the  engineer  in  charge  and 
have  the  amount  put  in  the  estimates,  to  be  paid  for  by  the  government  ;  it 
was  held  that  the  commissioner  was  not  personally  liable,  the  amount  never 
having  been  paid.  The  court  was  divided,  one  side  holding  that  in  case  of 
contracts  with  public  agents  the  presumption  was  that  the  public  faith  of 
the  government  was  relied  upon,  and  that  the  commissioner  in  ordering  the 
work  acted  within  the  scope  of  his  authority  as  a  railway  commissioner  and 
did  not  incur  any  personal  responsibility  ;  and  the  other  side  that  the  con- 
tract was  verbal,  and  it  should  have  been  left  to  a  jury  as  to  whether  the 
commissioner  personally  contracted  and  agreed  to  pay  for  the  work.5 

1  Meechem  on  Public  Officers,  §  803  4  Andover  v.  Grafton,  7  N.  H.  298. 

'Nichols  v.  Moody,   22  Barb.    (N.  Y.)  6Sumner  v.  Chandler,  2  Pugsley  &  B. 

«11.  (N.  B.)175. 
'Humphrey  v.  Jones,  71  Mo.  62  [1879]. 


8ee  Sees.  29-42,  54,  149,  and  178-180,  supra. 


§  258.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  251 

As  stated  under  the  subject  of  Law  of  Contracts,  if  the  work  is  done  under 
a  public  statute  or  by  virtue  of  a  public  act,  and  the  contractor  has  equal 
means  of  knowledge  as  to  the  officer's  authority,  the  officer  acting  in  good 
faith  will  not  be  responsible  if  he  has  exceeded  his  authority.  Individuals 
as  well  as  courts  are  presumed  to  know  and  must  ascertain  the  extent  of  the 
authority  of  public  agents.1 

256.  Officer  or  Employee  is  Responsible  for  His  False  Representations.— 
If  the  engineer  or  architect  make  false  or  fraudulent  representations  in  re- 
spect to  matters  or  work  upon  which  he  is  engaged,  he  will  be  liable  to 
parties  who  are  misled  by  such  representations,  and  suffer  in  consequence 
thereof  whether  the  engineer  be  acting  in  the  capacity  of  a  professional 
•engineer 2  or  a  public  officer.3     It  was  so  held  when  an  architect  ordered 
stones  to  complete  a  church  the  erection  of  which  he  was  superintending. 
To  get  them,  he  represented  or  pretended  that  he  was  authorized  to  order 
the  stones,  and  he  was  required  to  pay  for  them,  notwithstanding  the  fact 
that  they  were  used  in  the  church  edifice.     Whether  he  made  the  represen- 
tations with  intent  to  deceive,  or  knowing  he  had  no  authority,  or  under  the 
bonafide  belief  that  he  had  authority,  in  any  case  he  was  held  liable.4 

257.  Engineer's  and  Architect's  Liability  when  Holding  Office  of  Public 
Trust. — In  the  capacity  of  county  surveyors,  state  or  city  engineers,  city  or 
government  architects  and  commissioners,  their  relations  to  their  work  and 
to  their  patrons  are  different  from  those  of  a  professional  engineer  or  agent. 
When  acting  judicially  or  exercising  discretionary  powers,  the  public  officer 
should  be  afforded  the  same  protection  as  any  other  person,  and  he  is  so 
protected.5     Even  when  his  duties  are  purely  ministerial,  the  requirements 
of  a  public  officer  are  not  so  exacting  as  are  those  of  a  professional  man. 
While  the  latter  is  responsible  for  an  ordinary  amount  of  skill  and  capa- 
city for  the  work  he  solicits,  the  former,  being  elected  or  appointed,  is  not 
held  upon  an  implied  undertaking  that  he  does  possess  a  certain  amount  of 
skill  and  that  he  will  exercise  it.     If  it  were  required  that  such  officer, 
elected  or  appointed,  should  be  competent  and  that  the  incumbent  should 
possess  the  requisite  skill,  many  public  offices  would  "go  a  begging,  and  the 
government  service  might  be  seriously  crippled."     Public  policy  is  said  to 
recommend  that  they  should  be  exempt. 

258.  A   City   Engineer's    Liability  for   Mistakes. — One    of    the    most 
interesting  and   instructive   cases   reported   in   the    books   was   one   of  a 
practical  surveyor  and  city  engineer  who  surveyed  a  lot  for  the  owner  at 
the  latter's  request,  and    made   a   mistake   so   that  the  owner's  building 
was  erected  2.2  feet  upon  his  neighbor's  lot.     It  was  shown  that  the  de- 
fendant was  a  surveyor  and  civil  engineer,  and  that  by  ordinance  of  the  city 

1 19  Amer.  &  Eng.  Ency.  Law  500-501.  4Randell  v.  Trimen,  18  C.  B.  786  [1856]. 

2Randell  v.  Trimer,  18  C.  B.  786  [1856].          sEast  River  Gas  Light  Co.  t>.  Donnelly, 


3  Culver  v.  Avery,  7  Wend.  (N.  Y.)  380  ;      25  Hun  614;  19  Amer.  &  Eng.  Eucy.  Law 
Newman  v.  Sylvester,  42  Ind.  106.  484 


252     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  258, 

the  city  engineer  was  required  to  make  surveys  of  lots  within  the  city  limits 
for  private  individuals  when  requested.  The  ordinance  fixed  the  amount 
of  fees  he  should  receive  from  persons  for  whom  the  survey  was  made.  The 
surveyor  introduced  evidence  tending  to  show  that  he  used  due  care  and 
exercised  a  reasonable  degree  of  skill  in  making  the  survey,  and  in  fixing 
the  boundaries  to  the  lot,  and  that  he  believed  the  survey  to  be  correct  at 
the  time  it  was  made. 

The  case  was  tried  before  a  jury,  and  the  judge  was  requested  but  re- 
fused to  charge  :  "  That  if  the  jury  believed  from  the  evidence  that  the 
defendant  as  city  engineer  or  surveyor  'used  due  care  and  exercised  ft  rea- 
sonable amount  of  skill  in  locating  the  boundary  line  to  plaintiff's  lot,  the 
latter  was  not  entitled  to  recover  against  the  defendant  surveyor,  although 
the  boundary  lines  were  incorrectly  established."  The  jury  found  for  the 
plaintiff,  and  the  surveyor  excepted  and  moved  for  a  new  trial. 

In  delivering  its  opinion  the  higher  court  said  :  t(  An  ordinance  of  the 
city  required  the  city  engineer  to  survey  and  mark  the  boundaries  of  lots 
within  the  city  when  called  upon  so  to  do  by  private  individuals,  and  pre- 
scribed his  fees  therefor  ($2.50).  He  had  no  discretion  to  refuse  when 
called  upon  to  perform  such  services,  but  this  did  not  constitute  him  an 
agent  of  the  city  for  that  purpose.  Neither  the  city  not  any  private  person 
was  bound  by  the  surveys  he  might  make  when  acting  at  the  request  of  an 
individual.  His  report  would  not  be  conclusive  as  to  the  boundaries  of  the 
lot.  His  certificate  could  not  be  given  in  evidence  as  settling  the  boundary. 
He  did  not  do  it  for  the  city.  When  the  corporation  makes  public  improve- 
ments and  he  acts  under  its  direction,  then  he  is  its  agent,  and  his  act  is- 
the  act  of  the  city,  and  if  any  person  is  damaged  thereby,  it,  and  not  he,  is 
liable."1 

Whether  he  acted  as  city  engineer  or  as  a  professional  surveyor,  he  was 
not  bound  to  the  exercise  of  more  than  reasonable  care  and  skill.  If  he  did 
the  work  in  the  former  capacity,  he  was  liable  for  negligence  or  fraud  only; 
if  in  the  latter,  then  he  would  not  only  be  liable  for  negligence  or  fraud,  but 
for  want  of  skill.  In  neither  capacity  does  he  insure  the  correctness  of  his 
work.  The  law  exacts  that  of  no  man.  A  man  exercising  the  functions  of 
an  office  must  discharge  his  duties  carefully,  diligently,  and  honesty,  and  if 
he  does  so,  he  will  not  be  liable  for  damages;  but  when  a  man  holds  himself 
out  to  the  public  as  a  professional  man  he  engages  to  do  more.  He  thereby 
agrees  with  those  who  employ  him  to  do  the  work,  not  only  carefully,  dili- 
gently, and  honestly,  but  skillfully.  Absolute  correctness  is  not  to  be  the 
test  of  the  amount  of  skill  the  law  requires.  A  reasonable  amount  of  skill 
is  all  he  is  bound  to  bring  to  the  discharge  of  his  duties.  Upon  the  trial  of 
the  case,  the  manner  in  which  the  survey  was  made  was  a  material  question,, 
and  it  was  a  question  to  be  determined  by  the  jury.  They  were  to  deter- 

1  McCarthy  0,  Bauer,  3  Kans.  237  [1865];  semble  Sievess  v.  San  Francisco  (Cal.),  47 
Pac.  Rep.  687. 


§  259A.]       ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  253 

mine  the  amount  of  care  and  skill  he  did  exercise  in  performing  the  work, 
but  the  court  was  to  determine  what  amount  would  absolve  him  from  liabil- 
ity in  case  he  made  a  mistake.  There  having  been  testimony  on  both  sides 
as  to  the  manner  in  which  the  work  was  done,  it  was  necessary  that  the  jury 
be  informed  of  the  rule  of  the  law  in  order  to  arrive  at  a  correct  conclusion.1 

259.  Commissioners  of  Public  Works  and  Their  Liability. — Commissioners 
appointed  or  employed  for  a  special  and  single  object,  in  whose  employment 
there  is  no  enduring  element,  nor  designed  to  be,  and  whose  duties,  when 
completed  (although  years  may  be  required  for  their  performance),  termi- 
nate the  employment,  are  not  officers  in  the  sense  in  which  that  term  is  used 
in  the  constitution  of  the  State  of  Illinois.2  Clerks  of  commissioners  intrusted 
with  the  conduct  of  public  works,  are  not  liable  in  damages  for  an  injury 
occasioned  by  the  negligence  of  artificers  employed  under  their  authority.3 
A  public  officer  has  been  described  as  one  who  occupies  an  office  that  is 
parcel  of  the  administration  of  the  goverment,  civil  or  military,  or  is 
itself  created  directly  by  the  law-making  power.  The  chief  engineer  of 
a  quasi  public  corporation,  like  a  railroad  company,  is  not  a  public 
officer.4 

259 A.  Situation  of  Engineer  or  Architect  in  Injunction  and  Mandamus 
Proceedings — Liability  for  Contempt. — A  trying  position  in  which  an  engi- 
neer is  sometimes  placed,  and  one  in  which  some  knowledge  of  law  will  assist 
him,  is  where  proceedings  at  law  are  threatened,  or  an  injunction  is  sought, 
when  by  prompt  and  decisive  action  or  by  shrewd  and  skillful  application 
of  his  legal  knowledge,  he  may  outwit  the  prosecutor  and  accomplish  the 
object  which  others  seek  to  prevent.  A  structure  once  erected,  an  equity 
judge  will  seldom  decree  its  removal  or  destruction.  Structures  once  erected, 
or  whose  definite  location,  character,  and  purposes  have  not  been  made 
known,  or  proposed  works  which  cannot  be  proved  nuisances,  because 
their  purpose  and  character  is  unknown,  are  comparatively  safe  from  being 
enjoined.  Under  the  protection  of  these  and  other  safeguards  the  legal 
engineer  is  frequently  able  to  defeat  opposition  to  the  plans  of  his  employer.6 
However,  the  fact  that  an  alleged  unlawful  structure  was  completed  pending 
an  action  to  enjoin  its  construction  and  maintenance  does  not  affect  the 
right  of  the  court  to  enjoin  its  maintenance.8 

Injunctions  sometimes  issue  that  may  be  evaded  on  technicalities,  the 
recognition  and  prompt  advantage  of  which  may  be  taken  by  an  engineer 

1  McCarthys  Bauer,  3  Kans.  237  [1865];  The   cases  of  Dickinson   v.  The  People, 
see  also  Waller  v.  Dubuque,  69  Iowa  541;  etc.,  17  111.  191;  and  The  People  0.  Ridg- 
Alcorn  v.    Philadelphia,    44    Pa.    St.  348  ley  et  al.,  21  111.  65,  cited  and  explained. 
[1863];   2  Dillon's   Mimic.  Corp'ns,  §  237  »  Hall  v.  Smith,  2  Bing.  156  [1824]. 
note,  859,  910,  978;  Rowe  v.  Addison,  34  N.  4Eliason  v.  Col  em  an,  86  N.  C.  285  [1882]. 
H.    306,  312;   Norwell  v.  Wright.  3  Allen  6 10  Amer.  &  Eng.  Ency.  Law  833-7. 
(Mass.)  166;  Chitty's  Contracts  [9th  Amer.  6  Holmes  •».   Calhoun  County  (Iowa),  66 
ed.],  p.  598;  Story's  Agency  328.  N.  W.  Rep.  145. 

2  Bunn  v.  The  People,  45  111.  397  [1867]; 


254    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§259 A. 

versed  in  law.  If  the  injunction  cannot  be  defeated  or  avoided,  then  it 
becomes  his  duty  to  employ  other  tactics.  Whether  he  assumes  to  nego- 
tiate, to  fight,  or  to  beg,  he  should  know  what  attitude  to  take,  on  what 
ground  to  stand,  and  how  to  maintain  it.  These  questions  and  duties  may 
properly  belong  to  other  officials  of  the  company  to  determine,  but  frequently 
the  engineer  is  the  only  representative  present  upon  the  works.  Large  cor- 
porations whose  works  extend  over  a  large  territory,  who  offices  and  officers 
may  be  many  hundred  miles  from  the  arena  of  trouble,  cannot  decide  such 
difficulties  with  the  clearness  and  understanding  of  the  engineer.  They 
have  to  learn  from  him  the  whole  story,  the  condition  of  the  work,  the 
injury  consequent  to  delay,  and  then  decide  on  as  little  knowledge  perhaps 
as  he  should  possess,  if  qualified  in  the  principles  of  engineering  juris- 
prudence. 

The  subject  of  injunctions  and  mandamus  is  too  deep  to  undertake  to- 
present  even  in  the  briefest  manner,  and  the  reader  must  be  content  with  a 
passing  notice  of  the  subject.  A  fair  understanding  of  what  precedes,  and 
some  collateral  reading  upon  the  law  of  real  estate,  including  adverse  pos- 
session, easements,  prescription,  and  the  law  of  torts  will  put  an  engineer  or 
architect  in  the  possession  of  knowledge  that  will  certainly  greatly  assist  him 
in  the  preservation  of  his  employer's  property,  and  in  carrying  out  his 
schemes  and  projects  in  spite  of  opposition  and  competition. 

Notice  of  the  injunction  or  order  must  be  brought  to  the  knowledge  of 
the  party  enjoined.1  It  does  not  matter  how  the  information  was  acquired, 
if  he  knows  an  injunction  has  issued  and  what  it  contains,  he  must  answer 
for  any  violation  of  it  as  if  the  writ  had  been  regularly  served  upon  him  by 
an  officer  of  the  court.1  His  knowledge  must  be  positive  and  something 
more  than  heresay,  and  some  cases  hold  that  there  must  be  a  personal  ser- 
vice of  the  order  before  one  can  be  charged  with  contempt  for  not  obeying 
it.2  A  copy  of  an  injunction  left  at  a  person's  residence 3  is  a  notice  to  him, 
and  a  service  on  a  company  at  its  office  is  one  to  its  directors,4  and  a  service 
on  the  mayor  of  a  city  has  been  held  a  notice  to  all  the  officers  and  members 
of  the  city  government  who  know  about  it,6  including  agents  and  employees.' 
If  officers  of  a  company  conceal  themselves  to  avoid  service,  a  service  upon 
one  who  acts  as  their  attorney  will,  it  seems,  be  sufficient.7  It  has  been  held 
that  a  notice  could  be  sent  by  telegraph,  if  it  stated  clearly  and  plainly 
what  the  party  must  refrain  from  doing.8 

An  injunction  issued  by  a  court  of  competent  jurisdiction  must  be  fairly 
and  honestly  obeyed  it  cannot  be  evaded  by  subterfuges  or  tricks.9  If  the 

1  10  Amer.  &  Eng,  Ency.  Law  1011.  6  Wellesley    v.   Mornington,    11    Beav. 

2  McCauley  v.  Palmer,  40  Hun  (N.  Y.)      181. 

38;   Sanford  v.  Sanford,  40  Hun  (N.  Y.)  7  Golden  Gate  Min.    Co.    v.  Yuba  Co. 

540.  Super.  Ct.,  65  Cal.  187. 

3  Morris  v.  Bradford,  19  Ga.  527.  8  In  re  Bryant,  4  Ch.  D.  98;  Cape  M;iy, 

4  Brown  v.  Pac.,  etc.,  R.  Co.,  5  Blatchf.  eto.,  R.  Co.  v.  Johnson,  35  N.  J.  Eq  422. 
(U.  S.)  525.  9  Wilcox  Silv.  P.  Co.  v.  Sclrimmel    59 

8  People  v.  Sturtevant,  9  N.  Y.  263.  Mich.  524. 


§259A.]        ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  255 

court  has  not  jurisdiction,  then  one  who  disobeys  it  will  not  be  punished  for 
contempt.1  If  the  court  has  not  authority  in  the  sense  of  being  in  excess  of 
its  powers  as  limited  by  the  constitution  or  defined  by  law,  then  one  is  not 
subject  to  contempt  for  disobeying  it.2  The  erection  of  a  bridge  under  a 
special  act  of  Congress  in  disobedience  to  an  injunction  was  held  not  a  con- 
tempt.3 Ignoring  an  injunction  to  prevent  the  infringment  of  a  patent  which 
is  declared  invalid  on  appeal  has  been  held  not  contempt.4  If  the  order  of 
the  court  is  merely  erroneous,  some  courts  hold  it  must  be  obeyed,  or  the  one- 
who  violates  it  may  be  punished.5 

If  the  law  plainly  requires  a  public  officer  to  perform  a  duty  and  he  is 
not  exceeding  or  abusing  his  powers,  but  is  acting  fairly  within  them,  he- 
should  discharge  his  duty  as  prescribed  by  law,  although  a  court  issues  a 
writ  restraining  him  from  its  performance.6 

The  fact  that  a  party  who  has  disobeyed  an  order  of  the  court  did  so- 
under the  belief  or  under  advice  that  the  order  did  not  forbid  the  act,  will 
not  excuse  him  from  being  punished  for  contempt.7  Advice  of  counsel 
that  an  injunction  is  void  and  may  be  disregarded  will  not  protect  one  nor 
justify  a  disobedience  of  an  order  of  the  court;  yet  if  the  person  in  con- 
tempt has  not  been  headstrong  and  disrespectful  to  the  court,  it1  will  be  a 
factor  in  mitigating  the  punishment  or  lessening  the  damages  incurred.* 
Whether  or  not  a  person  has  committed  contempt  does  not  depend  upon 
his  intention,  but  upon  the  act  done.  Therefore  laboring  men,  not  familiar 
with  legal  proceedings,  were  guilty  of  a  constructive  contempt,  who  did  not 
at  once  fully  obey  an  injunction  served  in  the  absence  of  their  employer, 
because  they  thought  the  writ  meant  they  should  appear  and  answer  with 
the  employer,  though  they  desired  to  respect  the  order  of  the  court  and 
partly  obeyed  it.9 

An  interesting  case  is  reported  where  a  company  was  enjoined,  at  the 
suit  of  a  water  company,  from  allowing  any  deleterious  substances  to  escape 
from  its  factory  into  the  river.  The  company  thereupon  built  a  reservoir 
on  the  bank  of  the  river,  which  it  negligently  and  carelessly  permitted  to- 
break  and  discharge  its  contents,  it  was  held  a  contempt  punishable  by  fine, 
or  by  fine  and  imprisonment,  although  there  was  no  willful  purpose  to- 
violate  the  injunction.10  A  man  is  not  guilty  of  a  constructive  contempt 

1  3  Amer.  &  Eng.  Ency.  Law  788.  see  People  t>.  Edson,  52  N".  Y.  Super.  Ct. 

2  Keenan  v.  People,  58  111.  App.  241.  53,   mayor  appointing  superintendent    of 

3  State  of   Penna.   v.  Wheeling    Edge.  public  works :   and  Bowery  Nat.  Bk.  v. 
Co.,  13  How.  (U.  S.)  518,  18  How.  (U.  S.)  Mayor,  63  N.  Y.  336  [1875]. 

421,  see  other  cases,  10  Amer.  &  Eng.  Ency.  7  Atlantic  Powder  Co.,  9  Fed.  Rep.  316. 

Law  842-3.  8 10  Amer.  &  Eng.  Ency.  Law  1011- 

4  Worden  v.  Searls,  121  U.  S.  14.  1012. 

5  Keenan  v.   People,  58  111.  App.   241;  9  Shirk  v.  Cox  (Ind.    Sup.),  40  N.  E, 
Walton  t>.   Develing,  61   111.    201  [1871];  Rep.  750. 

but  see  In  re  McCain  (S.   D.),  68  N.  W.          10  Indianapolis  Water    Co.  v.  American 
Rep.  163.  Strawboard  Co.  (C.  C.),  75  Fed.  Rep.  972. 

6  Walton  v.  Develing,  61  111.  201  [1871]; 


256     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  259 A. 

for  disobeying  an  injuction  prohibiting  work  on  a  structure  when  the  order 
was  served  on  a  legal  holiday,  more  than  twelve  miles  away  from  the  works, 
and  that  next  day  he  drove  to  it  and  ordered  his  men  to  quit  work,  as 
required.1 

A  person  guilty  of  contempt  has  the  privilege  of  purging  it.  A  declara- 
tion that  no  disobedience  or  disrespect  was  intended  and,  that  he  acted 
in  good  faith,  usually  is  sufficient,  if  he  can  satisfy  the  court,  under  close 
questioning,  of  the  truth  of  his  declaration  and  sincerity  of  his  intentions, 
Some  courts  hold  that  the  offender  cannot  be  fined  or  punished  without 
giving  him  a  chance  to  explain.  A  mere  disavowal  of  an  intentional  wrong, 
without  an  expression  of  regret,  will  not  purge  it.  If  the  person  shows  his 
inability  to  perform,  it  may  purge  the  contempt,  but  not  inability  to  pay  a 
fine.8  Public  officers  who  have  not  obeyed  an  injunction,  and  have  been 
convicted  of  contempt,  which  conviction  stands  unreserved,  must,  it  seems, 
stand  the  expense  of  the  contempt  proceedings.  City  aldermen  cannot 
make  the  city  liable  for  such  costs.3 

1  Shirk  v.  Cox  (Ind.  Sup.),  40  N.  E.          8  West  «.  Utica  (Sup.),  24  N.  Y.  Supp. 
Rep.  750.  1075. 

2  3  Amer.  &  Eng.  Ency.  Law  796-799. 


CHAPTER   XIII. 

COMPENSATION  OF  ENGINEERS  AND  ARCHITECTS. 

PROTECTION     OF     LIEN     AND     OTHER     LAWS — FREE     PASSES. 

260.  Architect's  or  Engineer's  Compensation.* — In  connection  with  the 
employment  of  an  engineer  or  architect  the  question  naturally  follows  as  to 
his  compensation  and  the  means  he  may  have  of  securing  it.     His  com- 
pensation will,  of  course,  be  the  amount  agreed  upon  in  his  contract  of 
employment.     It  is  usual  to  receive  a  percentage  of  the  cost  of  the  works 
or  structure,  varying  from  3  per  cent,  on  very  large  works  to  15  per  cent, 
on  small  jobs.     Engineers  are  frequently  employed  on  an  annual  salary  of 
from  $1000  to  $10,000,  depending  upon  the  reputation  of  the  engineer  and 
the  wealth  of  the  corporation.     If  no  price  is  agreed  upon  for  services,  then 
the  employee  may  recover  what  his  services  are  reasonably  worth,  which 
may  be  a  question  for  a  jury  to  determine  from  evidence  produced  as  to 
what  is  usually  charged  for  such  services,  or  the  amount  it  is  the  custom  to 
receive  on  such  works. 

Resort  to  the  courts  is  the  proper  means  of  enforcing  payment  for  ser- 
vices, and  the  action  may  be  of  contract,  for  work,  labor,  and  materials,  or 
on  a  quantum  valebat,  or  on  the  common  counts. f 

To  entitle  an  architect  to  recover  for  plans  which  he  is  employed  to 
make,  he  must  show  their  delivery,  or  a  tender  of  them.1  An  architect 
employed  to  prepare  plans  and  specifications  of  a  building,  and  furnish 
an  estimate  of  the  probable  cost,  is  not,  upon  submitting  the  same,  entitled 
to  his  fees  unless  the  building  can  be  erected  at  a  cost  reasonably  approxi- 
mating that  stated  in  such  estimate.2 

261.  Eights   of  Engineers    and    Architects   to    a  Lien  for  Services.— 
Mechanics,  laborers,  and  materialmen  have  received  the  special  protection 
of  the  law  in  the  shape  of  liens  and  "  stockholders'  liability  acts  "  to  secure 
payment  for  their  services  and  materials.     Much  litigation  has  been  engaged 
in  to  determine  whether  an  engineer  and  architect  were  entited  to  protec- 
tion  under   these    acts.     The    courts  have  arrived  at   different  decisions, 
depending  frequently  upon  the  judges'  own  notions  of  an  architect's  or  engi- 

1  Wandelt  v.  Cohen  (Com.  PL),  36  N.  Y.          *  Feltham  v.  Sharp  (Ga.),  25  S.  E.  Rep. 
Supp.  811.  619. 

*  See  Sec.  296,  infra.  t  See  Sees.  211-214,  supra. 

257 


258      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  262. 

neer's  duties,  and  the  character  of  his  work,  and  at  other  times  upon  the 
interpretation  and  construction  of  the  act.  It  is  impossible  to  reconcile  the 
cases  and  to  make  any  general  statement  of  the  law  that  shall  cover  all  cases. 
It  is  well  established  that  the  acts  are  not  generally  intended  for  the  protec- 
tion of  so-called  professional  men.  An  act  for  the  protection  of  employees, 
operators,  and  laborers  of  a  company  has  been  held  not  to  include  the 
superintendent  and  attorneys  of  the  company,1  nor  can  an  agent,  superin- 
tendent, general  manager,  or  general  manager  and  bookkeeper  be  embraced 
under  any  of  the  terms  laborer,  servant,  or  apprentice.2 

It  is  usually  held  that  a  general  enactment  for  the  protection  of  laborers, 
mechanics,  apprentices,  and  materialmen  will  not  extend  to  an  architect  who- 
simply  prepares  plans  and  specifications.  The  decisions  are  nearly,  if  not 
quite,  uniform  upon  this  point,  except  in  those  states  whose  statutes 
expressly  name  architects  as  being  within  its  protection.8  To  same  effect,  a 
plan  of  a  house,  or  a  model,  or  a  mold,  or  a  piece  of  work,  do  not  enter  into 
a  structure,  and  cannot  be  regarded  as  within  a  statute  giving  liens  to  mate- 
rialmen and  laborers;  nor  can  a  lien  be  had  for  tools  used  in  the  construction 
of  the  structure,4  nor  for  labor  not  bestowed  upon  the  works.  Therefore,  it 
was  held  that  a  cook,  who  cooked  for  workmen,  even  though  the  cooking  was 
done  upon  the  grounds  as  the  work  progressed,  was  not  entitled  to  a  lien  on 
a  water- works  reservoir.5  A  contrary  rule  was  held  in  Minnesota,  where  a 
cook  was  held  entitled  to  a  lien  on  logs,  he  having  cooked  in  a  camp  for 
men  actually  and  directly  engaged  in  cutting,  hauling,  and  banking  logs,  and 
the  blacksmith  who  shoed  horses,  repaired,  and  sharpened  tools  for  the  men 
was  also  held  entitled  to  a  lien  on  the  logs  gotten  out.6  Other  cases  hold 
that  to  create  a  lien  the  materials  must  be  used  for  erecting,  altering,  or 
repairing  the  structure,  and  must  be  so  applied  as  to  constitute  a  part  of  it.7 

A  mining  engineer  who  has  rendered  professional  services  only  is  not 
entitled  to  a  lien  under  the  statute  of  Utah.8 

262.  If  Architect  or  Engineer  Supervises  and  Directs  Work  He  may 
Have  a  Lien  in  Some  States.— It  is  well  settled  in  Pennsylvania,  New  York, 
New  Jersey,  Minnesota,  and  Illinois  that  when  the  architect  directs  and  over- 
sees the  erection  of  a  structure  in  accordance  with  the  plans  and  specifica- 
tions, then  he  does  bring  himself  within  the  statute,  and  is  entitled  to  its 
benefits  for  so  much  as  the  superintending  is  worth.9 

1  People    v.    Remington,    45    Hun    338      senible,  Sweet  &  Carpenter  v.  James,  2  R. 
[1887]  I.  270,  288;  Phillips  v.  Wright,  5  Sandf. 

2  Small  House  v.  Ky.  &  M.  G.  Co.,  2      342. 

Mout.  443  [1876];  Gettv  v.  Ames  (Oreg.),  5  McCormick  v.  Los  Angeles  Co.,  40  Gal. 

48  Pac.  Rep.  355  [1897];  People  «.  Rem-  185. 

ingtou,  supra,  and  cases  cited ;  McDonald  'Breault  v.  Archambault  (Minn  ),  67  N. 

v.  Charlestown,  etc.,  R.  Co.  (Tenn.),  24  S.  W.  Rep.  348. 

W.  Rep.  252;  Addison  v.  Pac.  Coast  Mill.  7  Lambard  v.  Pike,  33  Me.  141. 

Co.  (C.  C.),  79  Fed.  Rep.  459.  8  Mining  Co.  v.  Cullins,  104  U.  S.  177. 

3  Price   v.    Kirk,   90   Pa.  St.  47   [1879];  9  Bank  v.  Gries.  35  Pa.  St.  423-  Railroad 
Foushee  v.  Grigsley,  12  Bush  75  [1876].  Co.  v.  Leufner,  84  Pa.  St.  168;  Hubert  t>. 

4  Ames    v.    Dyer,    41    Me.   397    [1856];  Aitken,  15  Daly  (N.  Y.)  237;  Stryker  v. 


§262.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  259"* 

It  is  submitted  that  this  is  no  more  than  just,  that  even  though  a  person- 
be  denominated  an  architect  in  the  contract,  if  he  performs  the  duties  of  a* 
mechanic,  foreman,  inspector,  or  superintendent,  he  should  be  entitled  to  &< 
lien  the  same  as  any  other  employee  of  the  same  class.  If  his  duties  re- 
quire him  not  only  to  draw  plans,  but  to  explain,  direct,  and  lay  out  the 
work,  then  he  is  performing  functions  that  ordinarily  belong  to  a  master 
mechanic  or  boss  carpenter.  It  is  as  essential  to  the  proper  construction  of 
a  building  as  is  the  purely  mechanical  part;  it  is  simply  of  a  higher  order, 
and  the  fact  that  it  requires  some  architectural  skill  should  not  impair  hi» 
right  to  a  lien.1 

It  may  be  noted,  however,  that  the  architect  recovers  as  a  mechanic  and^ 
for  mechanical  work,  and  not  for  general  professional  duties  as  an  architect. 
The  architect  cannot  claim  a  lien  for  charges  and  fees  alone;  he  must  show 
work  done,  and  the  kind  of  work  should  be  set  forth  distinctly.     A  mere 
naked  architect  who  draws  plans  in  anticipation  of  building,  without  being 
an  operative  mechanic,  is  not  within  an  act  that  provides  a  lien  for  work 
"done  for  and  about  the  erection  of  a  building."2     One  who  has  for  more 
than  five  years  been  a  student  of  architecture  and  building  construction,, 
and  has  planned,  worked  on,  and  superintended  the  construction  of  build- 
ings of   different  kinds,   inspecting   the   work   of   construction  in  all  its- 
branches,  has  been  held  a   "practical  building  mechanic,"  within  a  city/ 
charter  prescribing  the  qualifications  of  inspectors  of  buildings.3 

A  similar  rule  was  adopted  with  reference  to  a  civil  engineer,  which  was^ 
reversed  by  the  same  court  that  decided  the  Pennsylvania  case,  though  at  an 
earlier  date.     It  was  held  that  laborers  and  workmen  were  synonyms;  that 
an  engineer  employed  on  construction  was  a  workman;  that  his  work  was^ 
physical  as  well  as  mental.     He  makes  diagrams  and  plans,  ascertains  and 
marks  the  lines,  directs 'and  superintends  the  work.     The  court  further  ex- 
pressed the  opinion  that  the  engineer's  labor  was  skilled  work,  and  so  was  • 
that  of  the  bridge-builder,  and  whether  he  was  the  master  who  simply 
directed  or  the  man  who  used  the  tools,  that  it  could  not  be  doubted  that  • 
he  was  within  the  statute;  that  the  object  of  the  legislature  was  to  give; 
those  whose  skill  and  labor  created  the  structure  a  special  hold  upon  it  fojr 
compensation.4 

This  decision  was  reversed  and  quite  a  contrary  opinion  rendered.-  The1 
court  said:  "The  words  laborer  or  workman  used  in  the  act  cannot  ordi- 
narily be  understood  to  embrace  persons  engaged  in  a  learned  profession,, 

Cassidy,  76  K  Y.  50;  Rim  v.  Electric  P.  2  Price  v.   Kirk.  90  Pa.   St.   47  [1879]; 

Co    (Sup.),  38  N.  Y.  Supp.  845;  Mutual  Rush  v.  Able,  90  Pa.  St.  153;  Railroad  Co. 

Benefit  L.  Ins.  Co.  v    Rowand,  26  N.  J.  v.  Leufner,  84  Pa.  St.  168. 

Law  389;  Knight  v.  Norris,  13  Minn.  473;  3  People?'.  Board  of  Aldermen  of  Buffalo4 

Phillips    on    Mechanics'   Liens  (2d   ed.),  (Sup.),  42  N.  Y.  Supp.  545. 

§158;  and  see  1  Oreg.  169;  11  Nev.  304;  4  Leufner  v.  Pa.  &  Del.  Ry.,  11  Phila, 

and  other  cases  cited,  infra.  (Pa.)  548  [1876];  accord,  Stryker  v.  Gas- 

1  Bank  v.  Grigs,  35  Pa.  St.  423  (11  Casey)  sidy,  76  N.  Y.  50  ;  semble,  Conant  v.  Vam 

[I860].  Schaick,  24  Barb.  99. 


260      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  262. 

but  rather  such  as  gain  their  livelihood  by  manual  toil.  When  we  speak  of 
the  working  classes  we  certainly  do  not  intend  to  include  therein  persons 
like  civil  engineers,  the  value  of  whose  services  rests  rather  in  their  scientific 
than  their  physical  ability.  We  thereby  intend  those  who  are  engaged,  not 
in  head,  but  in  hand  work,  who  depend  upon  such  hand  work  for  their 
living.  In  all  the  statutes  of  this  kind  the  intent  has  been  to  protect  a 
class  of  persons  who  are  wholly  dependent  upon  their  manual  toil  for  ex- 
istence and  who  cannot  protect  themselves.  It  is  true  in  one  sense  the 
engineer  is  a  laborer,  but  so  is  the  lawyer  and  doctor,  the  banker,  and  corpora- 
tion officer,  yet  no  statistician  has  ever  been  known  to  include  them  among 
the  laboring  classes.  We  cannot,  therefore,  even  to  save  a  meritorious  claim, 
undertake  to  make  a  new  classification  which  must  necessarily  defeat  the 
statutory  intent." '  In  line  with  the  same  argument  it  has  been  held  that  a 
professional  chemist,  employed  to  analyze  metals,  is  not  entitled  to  a  prefer- 
ence under  a  statute  giving  preferences  to  laborers,  even  though  the  work 
could  have  been  done  by  a  laborer.8 

These  two  decisions  seem  to  have  been  made  largely  upon  the  personal 
(individual)  ideas  of  the  judges  who  rendered  them.  It  is  difficult  to  see 
how  an  engineer  can  better  protect  himself  than  a  materialman  or  a  laborer. 
And  the  appellate  judge's  knowledge  of  the  duties  of  an  assistant  engineer 
on  location  of  a  railroad  must  have  been  very  limited  when  he  compares  the 
manual  labor  of  an  engineer  in  the  field  with  that  of  a  lawyer,  doctor, 
banker,  and  corporation  officer.  This  case  was  an  earlier  decision  than  the 
one  allowing  an  architect  a  lien  for  his  services  superintending,  and,  as  all 
are  Pennsylvania  cases,  it  can  hardly  be  said  that  the  law  is  settled.  It  is 
impossible  to  distinguish  between  an  architect  superintending  a  house  and 
an  engineer  in  charge  of  construction  of  a  bridge  or  other  structure.  The 
duties  of  both  are  the  same.  Both  are  required  to  explain  the  plans  and 
drawings,  to  give  lines  and  levels,  lay  out  work,  and  give  it  general  super- 
intendence. It  is,  therefore,  contended  that  if  the  engineer  had  only  in- 
cluded in  his  claim  for  a  lien  his  charges  for  superintendence  and  active 
field  duties  on  the  line,  he  should  have  been  given  the  benefits  of  the 
statute. 

This  belief  is  further  strengthened  by  two  recent  oases— one  where  an 
architect  had  been  engaged  to  prepare  the  plans  and  superintend  the  erection 
of  a  building,  which  was  abandoned  when  only  partially  completed,  and  the 
court  held  that  the  architect  could  not  be  allowed  a  lien  upon  the  uncon- 
structed  part  of  the  building,  for  it  was  the  architect's  services  rendered 
during  the  construction  of  the  building  which  brought  him  within  the  lien 
law;3  and  another  case  under  a  statute  providing  that  when  any  person 

1  Penna.  &  Del.  R.  R.  Co.  v.  Leufner,  84      5  Pa.  Dist.  Rep.  623. 

Pa.  St.  168  [1877]  ;  Wen  troth's  Appeal,  1          3  Judge  Cullcn  in  Rfm  v.  Electric  Power 
Norris  469.  Co.  of   S    I.  (Sup.),  38  N.  Y.  Supp.  345 

2  Cuilum  0.  Lickdale  Iron  Co.  (Com.  PI.),      [1894],  3  App.  Div.  (N.  Y.)  305  [1896]. 


§  262.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  261 

shall  intrust  to  any  mechanic,  artisan,  or  tradesman  materials  to  construct, 
alter,  or  repair  any  article  of  value,  or  any  article  of  value  to  be  altered  or 
repaired,  the  meckanic,  artisan,  or  tradesman  shall  have  a  lien  on  such 
articles,  it  was  held  that  a  civil  engineer  who  makes  field  notes,  maps, 
charts,  and  drawings  for  a  corporation,  while  employed  by  it,  on  books  and 
papers  furnished  by  it  for  that  purpose,  is  entitled  to  a  lien  thereon  and  the 
possession  thereof  until  paid  for  his  services.1 

It  is  impossible  to  say  with  any  certainty  what  the  law  is  in  any  state, 
for  the  mechanic  lien  laws  are  subject  to  frequent  changes;  and  the  right  to 
a  mechanic's  lien  being  purely  statutory,  the  value  of  a  decision  is  lessened 
by  every  change.  In  Illinois  and  New  York  an  architect  or  engineer  has 
been  held  entitled  to  a  lien  for  superintending;2  and  an  architect  has  been 
held  entitled  to  the  protection  of  the  lien  laws  in  Alabama,3  for  "  work  or  labor 
upon  a  building  or  improvement  on  land ; "  in  Ohio  4  and  in  Iowa  for  plans, 
specifications,  and  superintendence; 5  in  New  Jersey  for  plans  and  specifica- 
tions and  superintendence  at  24-  per  cent; 6  in  Minnesota  at  5  per  cent; 7  also 
in  California; 8  in  Louisiana;9  and  in  Canada.10 

Maine,  Missouri,  Kentucky,  and  Tennessee  have  refused  to  recognize  the 
right  of  architects  to  a  lien  under  a  law  passed  to  protect  mechanics  and 
workmen,  even  though  they  do  superintend  the  erection  of  the  building.11 

If  the  contract  provide  that  all  payments  shall  be  made  on  certificates  of 
the  architects,  who  were  employed  to  supervise  the  construction  at  5  per 
cent,  of  its  cost,  and  that  final  settlement  should  be  made  on  their  certificate, 
it  was  held  that,  as  the  last  act  required  of  the  architect  was  to  give  a  final 
certificate,  his  time  for  filing  a  lien  for  services  did  not  begin  to  run  until 
the  performance  of  such  act.12 

The  argument  that  by  the  constitution  "all  men  are  born  free  and  in- 
dependent, and  have  certain  indefeasible  rights,  among  which  are  those  of 
enjoying  and  defending  life  and  liberty,  of  acquiring,  possessing,  and  pro- 
tecting property  and  reputation,  and  of  pursuing  their  own  happiness,"  does 
not  seem  to  have  had  much  weight  in  an  attack  against  lien  laws  which 
protect  only  a  certain  class  of  employees.13 

1  Amazon    Irrigating    Co.     v.     Briesen  W.  Rep.  717;  Gardner  v.  Leek  (Minn.),  54 
(Kans.  App.),  41  Pac.  Rep.  1116.  K  W.  Rep.  746. 

2  Taylor  v.  Gilsdorf,  74  111.  359;  Rim  v.  8  Pac.  Mut.  Life  Ins.  Co.  t>.  Fisher  (Cal.), 
Electric  P.  Co.,  3  App.  Div.  (N.  Y.)  305  42  Pac.  Rep.  154. 

[1896];  Stryker  v.  Cassidy,  76  N.  Y.  50;  9  Mulligan  v.  Mulligan,  18  La.  Ann.  20. 

Gurney  v.  Atlantic,  etc.,  R.  Co.,  58  N.  Y.  10  Arnoldi  v.    Gourin,   22    Grant's  Cli. 

358;  Hubert  v.  Aitkeu,  15  Daly  237;  but  (Ont.)  314. 

see  Ericsson  v.  Brown,  38  Barb.  *891.  n  Ames  v.  Dyer,  41  Me.  397;  Raeder  v. 

8  Hughes  v.  Forgerson,  96  Ala.  346.  Bensberg,  6  Mo.  App.  445;  Foushee  v 

4  Phoenix  Fur.  Co.  v.  Hotel  Co.  (C.  C.),  Grigsby,  12  Bush  76;  Thompson  «.  Baxter 

6G  Fed.  Rep.  683.  (Tenn.),  21  S.  W.  Rep.  668;  and  see  Adler 

6  Parsons  v.  Brown  (Iowa),  66  N.  W.  «.  World's  P.  Exp.  Co.  (111.),  18  N.  E. 

Rep.  880.  Rep.  809  [1888]. 

6  Mutual  v.  Rowand,  26  N.  J.  Eq.  389.  12  Bentley  v.  Adams  (Wis.),  66  N.  W. 

7  Knight  V.  Norris,  13  Minn.  473;  and  Rep.  505. 

see  Wauganstein  v.  Jones  (Minn.),  63  N.          13  Hoffa  v.  Person,  1  Pa.  Super.  Ct.  357. 


262    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  263. 

263.  Engineers'  or  Architects'  Rights  under  the  Stockholders'  Liability 
Acts. — The  law  is  in  about  the  same  condition  with  regard  to  the  constitu- 
tional and  statutory  provisions  making  stockholders  liable  for  the  labor  debts' 
.of  the  corporation.  There  are  many  cases  that  hold  that  an  engineer  is  not  a 
laborer  within  the  meaning  of  these  acts,1  while  others  have  maintained  a 
.contrary  view.5 

It  is  believed  that  the  cases  may  generally  be  distinguished  in  the  same 
way  as  under  the  lien  acts.  It  is  certain  that  to  bring  one's  self  within  the 
meaning  of  the  statute  they  must  strictly  answer  the  description  employed. 
If  the  statute  provides  for  the  protection  of  the  laborers  and  operatives  of  a 
company  or  their  laborers,  servants,  and  apprentices,  the  engineer  must  come 
well  within  the  meaning  of  one  of  the  classes  mentioned.  It  was  therefore 
lield  that  a  consulting  engineer  was  not  within  the  meaning  of  the  act,  the 
^ourt  adding  that  it  was  the  policy  of  the  legislature  to  protect  those  only 
who  are  the  least  able  to  protect  themselves,  and  who  earn  their  living  by 
manual  labor  for  a  small  compensation,  and  not  by  professional  services.4 
'This,  it  is  submitted,  is  peculiar  law,  which  determines  the  rights  of  a  citizen 
by  the  question  whether  he  lives  from  hand  to  mouth  or  whether  he  has  a 
competence ;  and  this  it  is  believed  cannot  be  made  the  test.  The  test  should 
,be  whether  the  employee  literally  brings  himself  within  the  statute. 

A  consulting  engineer,3  a  contractor,4  and  officers  of  the  company,  as  the 
chief  engineer  and  the  assistant  chief  engineer; 5  persons  who  have  a  proper 
.and  distinctive  appellation,  such  as  officers  and  agents  of  the  company,  are  not 
in  the  general  acceptation  of  the  term  servants ;  but  an  engineer  who  is  em- 
ployed in  the  ordinary  field  operations  of  surveying,  who  is  subject  to  the 
directions  and  control  of  the  officers  and  sometimes  the  servants  of  the  com- 
pany, is  a  servant  in  its  strictest  or  most  ordinary  sense.  It  was  therefore 
held  when  a  civil  engineer  sought  to  recover  from  a  shareholder  of  a  bank- 
rupt company,  for  services  of  himself  and  a  rodman  in  his  employ,  that  he 
•could  recover.  The  judge  said,  "I  can  see  no  middle  ground  between  re- 
stricting the  statute  to  day-laborers  and  applying  it  to  all  persons  employed 
in  the  service  of  the  company  who  have  not  a  different  and  distinctive 
.appellation,  such  as  officers  and  agents.  The  engineer,  the  master  mechanic, 
the  conductor,  is  as  fully  entitled  to  its  benefits  as  the  man  who  shovels 
gravel.  The  latter  is  no  more  nor  less  a  servant  of  the  company  than  either 
of  the  former."  6 

Ten  years  later  it  was  decided  that  a  person  employed  by  a  manufactur- 
ing corporation  as  its  civil  engineer  and  traveling  agent  at  a  fixed  salary  was 

1  Brockway  v.  Innes,  39  Mich  47  [1880];      Williamson  v.  Wadsworth,  49  Barb.  296; 
Boutwell    v.    Townsend,    37    Barb.    205;      Bailey  0.  Banker,  3  Hill  188. 

Hovey«.  Ten  Broeck,  3  Roberts  316;  Coffin  3  Ericsson  v.  Brown,  38  Barb.  390. 

•y.  Reynolds.  37  N.  Y.  640;   Aiken  v.  Was-  4  Aiken  v.  Wasson,  24  N.  Y.  482. 

-son,  24  N.  Y.  482;  Fish  0.  Dodge,  38  Barb.  5  Brockway  v.  Innes,  39  Mich.  47  [1880]. 

168;  17Amer.  L.  Reg.  102.  «  Conant  v.  Van  Schaick,  24    Birb    87 

2  Conaut  v.  Van  Schaick,  24  Barb.  87;  [1857];  see  Bailey  v.  Banker,  3  Hill  188. 
JFtichardson  v    Abendroth,  43  Barb.    162; 


.§  264.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  263 

a  servant  of  the  corporation  within  the  meaning  of  the  act.  This  case  was 
determined  upon  the  legal  meaning  of  the  word  servant  used  in  the  act  as 
•distinguished  from  an  independent  contractor  or  an  officer.  A  servant  in 
law  is  one  who  Mts  in  subordination  to  others,  under  whose  orders,  directions, 
and  control  he  acts  for  the  time  being.  The  one  commands,  the  other  obeys ; 
the  one  is  proprietor  and  superior,  the  other  a  mere  helper.  The  party  here 
was  employed  as  engineer  and  traveling  agent  at  a  fixed  salary,  he  was  in 
^very  act  relating  to  his  employment  in  subjection  to  the  company,  bound  as 
to  the  time  and  manner  of  performing  his  duties,  to  follow  their  directions 
and  implicitly  obey  their  commands.  He  was,  in  this  capacity,  their  subordi- 
nate helper,and  therefore  a  servant  within  the  act.1  On  this  line  of  reason- 
ing it  must  follow  that  a  contractor  for  construction  of  a  structure  would 
not  be  entitled  to  the  protection  of  the  statute,  and  the  cases  are  to  that 
•effect.2 

This  latter  view  would  seem  to  be  sound  law,  and  the  only  test  that 
avoids  complications  and  difficult  discriminations.  In  conclusion,  it  may  be 
said  that  a  general  statement  that  an  architect  or  engineer  is  or  is  not  entitled 
to  a  lien  or  to  an  action  for  services  under  the  stockholders'  liability  act, 
have  been  such  as  will  bring  him  within  the  act,  and  not  by  what  name  or 
cannot  be  made.  It  must  depend  in  each  case  on  whether  the  duties  of  the 
claimant  title  he  has  been  designated. 

264.  Compensation  for  Injuries  Received  while  Riding  on  a  Free  Pass. — 
Engineers  and  architects  in  the  employ  of  railroad  companies  or  of  com- 
panies having  intimate  business  relations  with  the  railroads  often  travel  free  of 
charge,  or,  in  the  popular  phraseology,  "  upon  a  pass/'  These  passes  usually 
have  printed  upon  them  a  stipulation  or  reservation  similar  to  the  following: 
"The  person  or  persons  using  this  pass  hereby  voluntarily  assumes  all  risk  of 
accident,  and  expressly  agrees  that  the  company  shall  not  be  liable  under  any 
circumstances,  whether  by  negligence  of  their  agents  or  otherwise,  and  that 
in  the  use  of  this  ticket  he  will  not  consider  the  company  as  a  common  car- 
rier or  liable  to  him  as  such."  As  explained  under  the  subject  of  Contracts, 
such  an  agreement  is  against  public  policy  and  void  when  it  requires  the 
person  accepting  and  using  the  free  pass  to  release  the  carrier  from  injury 
to  his  person  or  property  by  reason  of  the  negligence  or  willful  wrongdoing 
of  its  employees.3  *  Nor  can  such  a  stipulation  be  made  a  condition  in  the 
engineer's  contract  of  employment.4  In  spite  of  such  releases,  therefore,  it 
has  been  held  frequently  that  the  party  riding  upon  such  pass  could 
recover.5 

'Williamson  v.  Wadsworth,  49  Barb.  4  Accord,  Lake  Shore,  etc.,  R.  Co.  v. 
294  [1867];  Richardson  v.  Abendroth,  43  Spangler,  44  Ohio  St.  471  [1887]  ;  Roe- 
Barb.  162.  suer  v.  Herman,  3  Fed.  Rep.  782;  Kansas 

2  Aiken  «.  Wasson,  24  N.  Y.  482  [1862];  Pac.    R.    Co.  v.    Peavey,   29  Kan.  169;  2 
Peck  v.  Miller,  39  Mich.  594  [1880].  Thomp.  on  Negce.  1025;  1  Cent.  L.  J.  485. 

3  9  Amer.  &  Eng.  Ency.  Law  913,  914.  6  Porter  v.  N.  Y.  L.  Erie  &  W.  R.  Co., 

*  See  Chap.  I,  Sec.  86,  supra. 


264    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  265. 

There  are  many  decisions  to  the  contrary,  which  maintain  that  an  agree- 
ment to  assume  the  risk  of  injuries  to  one's  person  from  negligence  of  the 
company's  servants,  is  valid  if  it  is  made  in  consideration  of  the  free  car- 
riage,1 or  of  employment,2  and  that  if  a  passenger  receives  a  free  pass  or 
ticket  with  an  indorsement  of  such  a  contract  upon  it  he  will  be  bound  by 
its  terms.3 

The  fact  that  when  injured  he  was  riding  in  a  parlor  or  sleeping  car,  on 
a  ticket  entitling  him  to  that  privilege  and  for  which  he  paid  cash,  will  not 
change  the  relation  between  him  and  the  railroad  company,  nor  make  him  a 
passenger  for  hire.4 

265.  Passes  are  Usually  Given  for   Some  Consideration. —  The  point  is 
that  passes  are  not,  at  the  present  day,  granted  gratuitously  to  people. 
"When  given  to  employees  they  are  part  of  the  consideration  of  employment, 
and  an  important  one  to  an  engineer,  whose  duties  call  him  to  all  points  of 
the  road.     If  he  were  not  provided  with  free  transportation  his  salary  or 
compensation  would  have  to  be  increased  materially.     The  same  view  has 
been  taken  of  a  cattleman  riding  upon  a  drover's  pass,  he  being  regarded  as 
a  paying  passenger.6     The  same  might  be  held  of  many  others  who  ride  upon 
free  passes  which  are  indorsed  with  cast-iron  [glass]  stipulations  calculated 
to  avoid  all  and  every  liability  for  injuries  from  whatever  cause;  such  as 
attorneys,  granted  in  part  consideration  of  services;  editors  and  other  at- 
taches of  newspapers,  in  consideration  of  advertising  and  good  will ;  emigrants 
and  cattlemen,  in  consideration  of  getting  their  shipments;  and,  perhaps, 
even  office-holders  and  politicians,  in  consideration  of  their  looking  after  the 
interests  of  the  carrier  in  Congress  and  the  legislature — lobbying,  log-rolling, 
and  their  general  good  will. 

The  giving  of  the  pass  alone  is  pretty  good  evidence  that  it  was  for  a 
consideration.  If  otherwise,  it  is  a  breach  of  duty  on  the  part  of  the  officers 
of  the  company  to  so  use  property  intrusted  to  their  care  as  to  cause  loss  to 
its  stockholders.  Gratuitous  donation  of  a  thing  of  value  for  nothing  what- 
ever in  return,  is  not  prudent  management,  to  say  the  least. 

266.  Free  Carriage,  without  any  Agreement — Waiving  Damages  for  Gross 
Negligence.— It    is     perfectly    well     settled    that     the     mere    fact    that 

59  Hun  177  [1891];  9  Amer.  &  Eng.  Ency.  J.  Law   513;    Welles  v.  New  York  Cent. 

Law  914;  Griffiths  v.  Dudley,  9  Q.  B.D.  357;  R.  R.,  26  Barb.  641 ;  and  see  The  Indiana 

Louisville  E.  &  St.  L.  Ry.  v.  Donnegan.  12  Cent.    R.    R.    v.  Mundy,  2  Ind.  48;  Illi- 

N.  E.  Rep.  153;   and  see  35  Alb.  L.  J.  404,  nois  Cent.  R.   R.    v.  Read,  37111.  484;  see 

33  N.  W.  Rep.  603,  8  Fed.  Rep.  782.  also  9  Amer.  &  Eng.  Ency.  Law  913-914, 

1  Kinney  0.  Cent.  R.  R.    of    N.  J.,   34  and  cases  collected;  Steamboat  v.  King,  16 

N.  J.  Law  513;  Perkins  v.  N.  Y.  Cent  R.  How.  (U.  S.)469;  1  Am.  R.  Cas.  191,  note; 

Co.,  24  N.  Y.  196;  Bissell  v.  N.  Y.  Cent.  and  an  article  in  26  Am.  Law  Review  212 

R.  Co.,  25  N.  Y.  448;  and  see  Jacobus  «.  [1892]. 

St.  Paul  R.  Co  ,  20  Minn.  110.  4  Ulrich  v.  N.  Y.  Cent.  R.  Co.,  108  N. 

s  Pittsburgh,    etc.,   R.    Co.    «.   Mahony  Y.  80  [1888], 

(Ind.  Sup.),  46  N.  E.  Rep.  917,  but  not  so  5  Peuna.  R.  Co.  v.  Henderson,  51  Pa.  St. 

if  the  pass  is  not  a  gratuity;  Doyle  u.  Fitch-  315;  contra,    Omaha    &  R.  V.  Ry.  Co.  v. 

burgR.  Co.  (Mass.),  44  N.  E.  Rep.  611.  Crow  (Neb.),  66  N.  W.  Rep.  21:  other  case» 

3  Kinney  v.  Cent.  R.  R.  of  N.  J.,  34  N.  9  Amer.  &  Eng.  Ency.  Law  914. 


§  266.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  265 

the  passenger  is  carried  gratuitously,  or  as  a  matter  of  courtesy,  does 
not  prevent  him  from  recovering  from  the  carrier  for  injuries  received 
arising  from  gross  negligence  of  the  company's  servants.1  In  the  absence 
of  express  agreement  exempting  the  carrier  from  liability,  it  will  be  liable 
for  injuries  resulting  either  from  culpable  negligence  or  want  of  skill;  and 
the  liability  does  not  arise  from  any  implied  contract,  but  from  the  violation 
of  a  duty  imposed  by  the  circumstances.2  A  duty  is  imposed  by  law  that  any- 
body that  causes  damage  to  another  is  bound  to  repair  it,  and  it  is  against 
the  policy  of  the  law  to  allow  any  one  to  escape  that  responsibility.3 

An  engineer  does  not,  it  seems,  assume  the  risks  of  riding  over  a  defective 
track,  to  and  from  his  work,  so  as  to  relieve  the  company  from  liability  for 
the  negligence  of  its  employees.4  A  person  riding  on  a  construction  train  on 
account  of  a  pass  issued  by  a  subcontractor,  over  a  section  of  a  railroad  in 
possession  and  under  control  of  the  contractor  who  is  injured  through  the 
negligence  of  a  locomotive  engineman  employed  and  controlled  by  the  con- 
tractor, cannot  recover  from  the  railroad  company  whose  road  they  are 
building.5 

The  constitution  of  the  State  of  New  York,  Art.  13,  §  5,  provides  that 
any  public  officer  elected  or  appointed  to  a  public  office  who  shall  travel  on 
a  free  pass  shall  forfeit  his  office.  A  notary  public  has  been  held  a  public 
officer  within  the  article;  and  it  would,  without  doubt,  apply  to  engineers 
and  architects  appointed  or  elected.6  The  article  applies  to  public  officers 
nsing  passes  received  by  them  before  such  provision  took  effect." 

1  Pbila.  &  Reading  R.  Co.  v.  Derby,  1  la.),  42  N.  W.  Rep.  563;  see  also  North- 
Am.    Law    Reg.    397   [1852];  other  cases  era  Pac.  R.  Co.  v.  Beaton  (C.  C.  A.),  64 
cited,  9  Amer.  &  Eug.  Ency.  Law  914.  Fed.  Rep/ 563. 

2  Noltonfl.  Western  R.  Corp.,  15  N.  Y.  6  Scarbrough  v.  Alabama  Mid.  Ry.  Co, 
444  [1857].  (Ala.),  10  So.  Rep.  316. 

3  9  Amer.  &  Eng.  Ency.  Law  913.  6  People  v.  Rathbone  (N.  Y.  App.),  40 

4  Melvy  v.  Chicago  &  N.  W.  Ry.  Co.  N.  E.  Rep.  395. 


CHAPTEE  XIV. 

EMPLOYMENT   OF  AN  ENGINEER  OR  ARCHITECT  AS  AN  EXPERT 

WITNESS. 

THE  CONSULTATION,  PREPARATION,  AND  BEHAVIOR  IN  COURT.      REMUNERA- 

TION   FOR   HIS   SERVICES. 

267.  Expert  Witness — Treatment  of  the  Subject. — The  duties  of  an  engi- 
neer in  the  capacity  of  an  expert  witness  may  be  properly  treated  under  four 
heads,  to  wit:  (1)  Consultation,  which  may  include  inquiries  to  make,  infor- 
mation to  seek,  attitude  to  assume,  and  opinion  to  express;  (2)  preparation, 
including  study  of  books,  collection  of  materials,  preparation  of  documents, 
diagrams,  models,  and  calculations;  (3)  behavior  in  court,  experts'  conduct, 
duties,  and  rights  upon  the  witness  stand,  and  what  devices  he  may  resort 
to,  to  strengthen  them  and  prove  his  convictions;  (4)  compensation,  whether 
entitled  to  anything  but  regular  witness  fees. 

THE  CONSULTATION. 

268.  An  Expert  should  Take   Time  to  Investigate   and  Decide  before 
Giving  an  Opinion. — When   an   engineer    is    approached    by  a    party    to 
a  suit,  to   ascertain   if  certain  facts   are  true  or  if  certain    results  would 
naturally   or    necessarily    follow    certain    conditions    and    circumstances, 
it   is   necessary  that   he   should    exercise   the   utmost  caution  and  discre- 
tion  in   giving  an   opinion.      Nothing   could  be   more   futile   or    impos- 
sible than  to  give'  an  opinion  without  knowing  all  the  facts  and  circum- 
stances,  and  until  time  has  been  taken  for  consideration,   computations, 
study,  and  reflection.     An  expert's  first  duty  is  to  thoroughly  acquaint  him- 
self with  the  whole  story;  he  must  learn  all  the  facts  and  circumstances,  visit 
the  scene  of  controversy  before  he  can  attempt  a  conclusion.     He  should 
•deny  hasty  answers  and  opinions,  but  reserve  his  decisions  upon  all  impor- 
tant questions,  and  in  the  sober  atmosphere  of  his  study  or  office,  secure 
from  excitement  and  the  coloring  of  partisan  spirit,  with  his  books  for  coun- 
sel and  his  computations  for  guides,  determine  questions  upon  which  he  may 
'be  asked  to  stake  his  reputation  and  professional  experience  and  controvert 
the  opinions  of  brother  engineers.     An  engineer  is  as  much  justified  in 
requesting  time  for  the  consideration  of  a  problem  in  engineering  as  is  a 
lawyer  to  look  up  a  question  of  law,  and  unless  he  is  perfectly  satisfied  (of 

206 


§  269.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  267 

•the  proper  solution  or  of  the  reasonable  outcome  of  a  certain  state  of  facts) 
that  his  answer  is  technically  correct,  he  may  simply  ask  time  to  consider  it 
further  before  expressing  an  opinion  or  making  a  decision.  Nothing  can  be 
more  embarrassing  than  to  have  to  modify  or  correct  opinions  hastily  given, 
<or  more  humiliating  than  to  take  the  fire  of  a  skillful  attorney  assisted  by  a 
learned  engineer,  in  an  effort  to  sustain  an  untrue  statement  or  a  mistake  in 
.a  professional  opinion. 

He  "  stands  with  bare  breast,  his  entire  moral  and  professional  career 
from  childhood  open  to  the  shafts  of  the  enemy.  If  he  be  proved — and 
sometimes,  if  he  be  accused  of  being — untruthful,  ignorant,  incompetent, 
over-pretentious,  careless,  or  any  one  of  a  dozen  und-esirable  things,  over  goes 
not  only  his  present  case,  but  his  entire  future  as  an  unblemished  and  unvan- 
quished  expert."1  "He  stands,  as  did  the  gladiator,  an  Ishmaelite,  his 
hand  against  every  man,  and  every  man's  hand  against  him."  2  His  oppo- 
nents elevate  themselves  out  of  his  shattered  reputation,  and  glorify  them- 
selves out  of  the  destruction  of  his  fame.  Such  a  mistake  is  worse  than  a 
blunder  in  actual  work,  for  court  proceedings  are  public  property,  published 
by  individuals  and  the  press.  Though  perhaps  only  a  hasty,  imprudent 
reply  or  remark,  it  becomes  an  advertised  publication  to  his  discredit,  that 
is  always  on  record,  to  come  up  before  him  at  any  time  and  every  place,  a 
bitter  reminder  of  his  carelessness. 

269.  Expert  must  have  Regard  for  the  Understanding  and  Knowledge 
of  His  Audience. — "Skilled  witnesses  are  apt  to  make  themselves  appear  less 
trustworthy  by  forgetting  that  their  science  has  advanced  them  beyond  the 
ideas  of  the  people  before  whom  they  appear.  Mr.  Brunell,  the  eminent 
engineer,  being  asked  once  in  cross  examination,  before  a  committee,  how 
fast  steam-carriages  might  be  expected  to  travel  on  railroads,  answered,  '  Very 
possibly  ten  miles  an  hour/  upon  which  the  learned  counsel  contemptuously 
bid  him  stand  down,  for  he  should  ask  him  no  more  questions,  and  the  weight 
of  his  former  evidence  was  much  impaired."  ; 

The  knowledge,  observation,  and  experience  of  men  vary  in  every  imag- 
inable degree;  their  notions  of  possibility  and  probability  naturally  differ  to 
nearly  the  same  extent.  Facts  that  one  man  considers  both  possible  and 
probable,  another  holds  to  be  physically  impossible.  These  notions  are  more 
or  less  accurate  according  to  one's  acquaintance  with  the  laws  of  nature,  of 
science  and  mathematics,  for  phenomena  in  apparent  violation  of  nature's 
laws  have  been  found  on  examination  to  be  the  regular  consequences  of 
other  laws  previously  known.  "The  story  of  the  king  of  Siam  is  often 
quoted  to  show  this.  This  king  believed  everything  the  Dutch  ambassador 
told  him  about  Europe,  until  he  mentioned  that  the  water  there  in  winter 
became  so  hard  that  men,  horses,  and  even  elephants  could  walk  upon  it, 
which  that  monarch  at  once  pronounced  a  palpable  falsehood." '  The  world, 

1  Amer.  Engineer,  Sept.  12,  1884.  8  Gressley's  Equity  Evidence,  469. 

3  Engineering  News,  April  9,  1887.  4  Locke  Bk.  4  Ch.  14,  §  5. 


268    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  270. 

and  especially  the  ecclesiastical  and  legal  elements  of  the  world,  have  always 
been  ready  to  demonstrate  the  physical  impossibility  of  new  ideas  and  under- 
takings. Columbus's  theory  of  the  shape  of  the  earth,  ocean  travel  by  steam, 
electric  telegraphing,  high-speed  travel  in  railway-carriages,  and  a  thousand 
other  new  ideas  and  undertakings  have  been,  each  in  its  turn,  pronounced 
impossible,  and  their  probability  a  lie  too  gross  to  require  confutation. 
Their  promoters  and  believers  have  been  the  mockery  of  the  world,  "  con- 
signed to  confinement  as  hopeless  lunatics  or  sent  to  the  stake  as  emissaries 
of  the  powers  of  darkness." 

The  skilled  witness  must  confine  himself  to  the  understanding  of  his 
audience.  His  language,  illustrations,  and  explanations  should  be  common- 
place and  within  the  comprehension  of  the  court  and  jury.  In  no  instance 
should  good  common  sense  and  experience  be  sacrificed  to  theoretical  and 
technical  views,  unless  opposed  to  the  truth  and  to  the  witness's  firmest  con- 
victions. He  should  go  into  court  well  armed  and  fortified  with  scientific 
facts  and  principle,  his  foundation  should  be  based  upon  mathematical  and 
scientific  reasoning,  and  not  upon  popular  notions  and  beliefs;  but  these  facts 
and  principles  must  be  presented  and  delivered  in  a  manner  to  be  understood. 
However  firm  the  convictions  of  an  engineer  may  be  within  himself,  they 
cannot  have  much  weight  as  expert  testimony  unless  they  can  be  presented 
and  are  comprehensible  to  the  average  man;  and  this  must  be  considered 
before  engaging  to  prove  these  convictions  in  the  capacity  of  an  expert  wit- 
ness. ' 

270.  Esteem  in  which  Experts  are  Held  by  Bench  and  Bar. — An  engi- 
neer should  be  made  acquainted  with  the  feelings  with  which  he  is  regarded 
and  the  attitude  assumed  by  the  court  toward  him  before  he  consents  to 
appear  before  it,  for  or  against  a  cause.  He  may  then  see  the  necessity  o 
considering  how  clearly  and  positively  he  stands  upon  the  question  submit- 
ted, and  how  willing  he  may  be  to  stake  his  professional  standing  and  repu- 
tation upon  it. 

Courts  have  little  confidence  in  expert  testimony.  The  opinion  of 
scientific  witnesses  is  at  the  very  bottom  of  the  scale  of  importance  of  all 
the  various  classes  and  kinds  of  testimony.  The  following,  from  one  of  the 
best  text-writers  upon  the  subject  of  evidence,  is  but  a  fair  example  of  the 
opinions  of  jurists  frequently  expressed.  He  says:  "Perhaps  the  testimony 
which  least  deserves  credit  with  a  jury  is  that  of  skilled  witnesses.  These 
gentlemen  are  usually  required  to  speak  not  to  facts,  but  to  opinions,  and 
when  this  is  the  case  it  is  often  quite  surprising  to  see  with  what  facility 
and  to  what  an  extent  their  views  can  be  made  to  correspond  with  the 
wishes  or  the  interests  of  the  parties  who  call  them.  They  do  not,  indeed, 
willfully  misrepresent  what  they  think,  but  their  judgments  become  so 

1  For  an  interesting  case  in  point,  see  Salvin  v.  N.  Brancepeth  Coal  Co.,  L.  R.  9  Ch. 
App.  705  [1874J. 


£  271.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  269 

warped  by  regarding  the  subject  in  one  point  of  view,  that  even  when  con- 
scientiously disposed  they  are  incapable  of  expressing  a  candid  opinion. 
Being  zealous  partisans,  their  belief  becomes  synonymous  with  Faith  as 
•defined  by  the  Apostles,  and  it  too  often  is  but  '  the  substance  of  things 
hoped  for,  the  evidence  of  things  not  seen/  To  adopt  the  language  of  Lord 
Oampbell, '  Skilled  witnesses  come  with  such  bias  on  their  minds  to  support 
the  cause  in  which  they  are  embarked,  that  hardly  any  weight  should  be 
given  to  their  evidence/  "  l 

Although  this  strong  language  is  not  always  indorsed,  and  expert  evi- 
dence is  often  regarded  as  absolutely  essential  in  the  administration  of  jus- 
tice, yet  it  is  discouraged,  and  received  only  in  cases  of  necessity,  the 
universal  feeling  being  that  better  results  will  generally  be  reached  by  taking 
the  impartial,  unbiased  judgment  of  twelve  jurors  of  common-sense  and 
common  experience  than  can  be  obtained  by  taking  the  opinions  of  experts, 
if  not  hired,  at  least  friendly,  and  whose  opinions  cannot  fail  generally  to 
be  warped  by  a  desire  to  promote  the  cause  in  which  they  are  enlisted.2 

Expert  testimony  based  upon  the  testimony  of  a  witness  which  is 
rejected  by  the  jury  is  held  of  no  value,  and  scientific  opinions  are  regarded 
as  worthless  when  pitted  against  facts.  The  theories  of  skilled  men  are 
not  always  reasonable,  and  are  never  to  be  regarded  when  they  manifestly 
conflict  with  established  facts.3  However,  it  has  been  held  error  to  author- 
ize the  jury  to  reject  as  untrue  the  statement  of  an  expert  merely  because 
it  is  not  confirmed  by  their  own  experience  and  observation.4 

271.  Biased  and  Warped  Judgments  are  not  Confined  to  Professors  of 
Science. — However  much  is  said,  or  may  be  said,  of  the  differences  of  opinion 
among  scientific  witnesses  and  of  their  warped  judgments,  it  may  not  be 
out  of  place  to  remind  lawyers  and  jurists  that  no  such  diversity  of  opinion 
exists  in  science  as  is  openly  exhibited  in  law,  both  at  the  bar  and  on  the 
bench.  Mistakes  are  no  more  frequent  among  engineers,  chemists,  and 
physicians  than  they  are  in  the  legal  profession.  Questions  of  law  are  fre- 
quently as  much  matters  of  opinion  as  are  questions  of  science,  and  it  is 
submitted  that  there  is  no  better  evidence  of  the  fallibility  of  human  nature 
than  that  recorded  in  the  reports  of  the  courts.  Every  case  that  is  reversed 
by  a  higher  court  is  a  record  of  a  mistake  in  the  court  below,  and  every 
suit  brought  and  defended  must  prove  one  of  three  things,  viz.:  (1) 
Either,  one  of  the  lawyers  has  misunderstood  the  facts  of  his  case,  or  (2)  he 
has  lacked  in  ability  and  learning  of  his  profession,  or  (3)  (and  with  all 
due  respect  to  the  legal  profession,  and  with  a  full  appreciation  of  the 
tendencies  and  temptations,  and  with  as  much  charity  as  the  bench  and 
bar  have  shown  to  men  of  science)  he  has  possessed  too  much  of  "that 

*  Taylor's  Law  of  Evidence  (8th  ed.)  79      N.  E.  Rep.  686  [1887-8]. 

and  573.  4  Louisville    &    N.   R.    Co.   v.   Malone 

*  Ferguson  v.  Hubbell,  97  N.  Y.  507.  (Ala.),  20  So.  Rep.  33. 
3  Stone  «.  C.  &  M.  R.  Co.  (Mich.),  13 


270      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  272. 

facility  of  changing  his  views  to  correspond  with  the  wishes  and  interests  of 
his  client,  and  his  judgment  has  become  so  warped  by  regarding  the  case 
from  one  point  of  view" — the  professional  point,  and  not  the  point  of  law. 
Any  one  of  these  may  apply  to  a  skilled  witness,  but  science  and  engineer- 
ing are  not  based  upon  fictitious  rules  and  principles,  such  as  "  every  man  is 
supposed  to  know  the  law,"  and  "  ignorance  of  the  law  is  no  excuse."  If 
judges  and  lawyers  make  frequent  mistakes,  they  should  have  some  charity 
for  scientists,  whose  field  is  immeasurably  broader  and  infinitely  deeper. 

The  courts  and  lawyers  talk  of  bias,  prejudice,  ignorance,  and  narrow- 
mindedness  of  scientific  men,  but  this  is  manifestly  unjust.  It  is  not 
evident  that  scientific  men  make  many  mistakes  in  their  professional  prac- 
tice. These  same  lawyers  and  jurists  do  not  hesitate  to  consult  and  employ 
physicians,  chemists,  and  engineers  when  they  are  sick,  poisoned,  or  have 
structures  to  erect. 

272.  Experts  Are  Champions  of  Their  Clients  as  Well  as  Attorneys.— 
Experts  have  come  to  regard  themselves  as  champions  of  a  cause,  "and  their 
testimony  is  nothing  more  than  a  studied  argument  in  favor  of  the  side  for 
which  they  have  been  called.     So  generally  true  is  this  that  it  would  excite 
scarcely  less  surprise  to  find  an  expert  called  by  one  side  testifying  in  favor 
of  the  other  side,  than  to  find  the  counsel  upon  either  side  arguing  against 
their  clients  in  favor  of  their  antagonists."  l     In  general  this  cannot  be 
denied,  and  so  long  as  experts  are  hired  advocates  they  can  "be  no  more 
blamed  for  their  partisan  views  expressed  than  can  the  counsel  for  his 
arguments  against  his  convictions  and  better  understanding;  but  to  make 
a  wholesale  declaration  that  men  of  science,  as  a  class,  are  wholly  unreliable, 
that  their  opinions  are  biased,  bought,  and  of  no  weight,  is  a  libel  upon  sev- 
eral large  professions  of  honorable  men,  who  in  their  whole  lifetimes  may 
not  see  a  witness-stand. 

Courts  lay  it  down  as  a  duty  to  experts,  in  any  case,  to  testify  with  im- 
partiality, to  give  their  honest,  conscientious  opinion  and  judgment;  but  as 
well  might  they  charge  the  counsels  to  adhere  strictly  to  their  convictions 
of  what  the  truth  is  or  what  the  laws  are.  The  opinions  of  an  expert  have 
become  an  expression  which  is  a  part  of  the  counsel's  case,  and  are  to  sup- 
port the  framework  of  his  arguments.  They  are  prompted  by  the  solicita- 
tions and  suggestions  of  the  counsel,  who  is  the  loudest  in  berating  and  con- 
demning the  practices  which  he  has  created,  an  example  of  which  is  shown 
in  the  following  libelous  comparison,  sometimes  indulged  in  by  disappointed 
members  of  the  bar:  as  "positive,  liar;  comparative,  thundering  liar; 
superlative,  scientific  witness." 5 

273.  Candid  Opinions  of  Experts  may  be  Had  if  They  are  Sought.— If 
courts  want  truths  and  candid  opinions,  let  them  acquire  the  power  to  sum- 
mon skilled  witnesses  of  acknowledged  authority,  on  behalf  of  the  court  or 

1  1  Redfield  on  Wills  103.  2  34  Alb.  Law  Journal  457. 


§  274.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  271 

state.  Let  them  seek  the  unbiased  and  free  opinion  of  engineers  and 
architects,  and  there  will  not  be  the  controversy  now  experienced.  Their 
compensation  may  be  added  to  the  costs  of  the  suit,  or  be  paid  from  the 
public  treasury.  Similar  practices  are  in  vogue  in  France  and  Germany,, 
and  must  eventually  be  adopted  in  this  country.1 

It  is  submitted  that  men  who  care  to  maintain  their  name  and  reputa- 
tion will  hardly  care  to  submit  to  the  reflections,  opinions,  and  directions  of 
an  attorney  at  law  upon  an  engineering  question,  and  it  is  quite  clear  that 
the  best  men  of  science,  or  of  the  scientific  professions,  will  not  act  as 
experts  under  existing  conditions  and  be  subject  to  any  dictation.  "Who 
indeed  is  oftenest  heard  from  as  an  expert  in  court  ?  Not  the  man  of  last- 
ing renown  and  of  chief  honor  in  his  profession,  but  rather  he  of  'your 
modern  kind  of  fame,  the  morning  papers  reeking  with  his  name/  " 2 

274.  It  Is  the  Duty  of  Every  Citizen  to  Promote  Justice.— Where  an 
engineer  has  given  due  consideration  to  his  subject,  and  is  perfectly  satis- 
fied lie  can  assist  justice  and  can  prove  the  truth  to  court  and  jury,  he 
should  not  refuse.  It  should  be  his  duty  to  meet  and  overcome  this  reck- 
less and  biased  practice  of  warping  science  to  the  uses  of  the  wicked. 
Nature  should  blush  at  the  uses  made  of  her  teachings.  Is  science  a  mar- 
ketable commodity?  can  mathematics  be  employed  to  usurp  the  truth?3  can 
the  laws  of  nature  be  altered  to  suit  the  exigency  of  any  and  every  case  ? 
But  give  an  engineer  his  freedom  upon  the  witness-stand,  relieve  him  from 
the  constant  interruption  and  objections  of  opposing  and  friendly  counsel, 
permit  him  to  answer  questions  with  proper  explanations  and  limitations, 
and  matters  of  science  and  mathematics  will  not  remain  long  in  doubt. 
Nothing  is  more  annoying  and  aggravating  to  a  conscientious  witness  than  to 
be  required  to  answer  questions  categorically,  by  yes  or  no — questions  that 
have  been  studied  and  prepared  by  the  attorney  for  the  express  purpose  of 
demonstrating  certain  doubtful  matters  of  science,  or  to  prove  true  an 
untruth,  and  which  may  convey  an  impression  directly  contrary  to  the  mean- 
ing which  the  witness  would  express. 

From  what  has  been  said,  the  reader  may  conclude  that  the  writer  would 
warn  engineers  of  parties  to  suits  or  their  counsel  who  require  certain  facts 
to  be  established,  or  who  introduce  themselves  with  the  question,  "  Can  you 
or  will  you  testify  to  this  or  that  fact?"  A  much  better  impression  may 
be  had  of  those  who  inquired  after  the  truth  or  Actual  results  of  certain  con- 
ditions. The  engineer's  mission  and  his  profession  is  simply  the  elucida- 
tion of  truth.4  If  he  is  a  man  true  to  his  profession,  h&  will  always  give  the 
results  of  his  study,  whether  it  bears  for  or  against  the  side  upon  which  he 
happens  to  be  called.  If  he  is  not  prepared  to  do  that,  or  if  the  circum- 
stances .of  the  case  prevent  it,  then  he  is  in  duty  bound  to  decline,  or 

1  Best  on  Ev'dce  (Chamb.  ed.)  §  515.  3  Article  in  3  Law  Times  444  [1844]. 

2  17  Engineering  News  234  [1887];  Rog-          4  Wm.   J.    McAlpine,    Transactions    of 
ers'  Expert  Testimony  56.  Amer.  Soc.  C.  E.  1870. 


272     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  275. 

refuse  to  render  his  services.  This  he  may  not  always  do;  but  if  compelled 
to'  attend  against  his  wishes,  he  cannot  be  said  to  be  under  any  obligations 
to  either  party  to  the  suit,  and  may  exercise  his  honest  judgment,  without 
prejudice  or  criticism. 

275.  The  Preparation — Expert  Witness   should  not  Only  be  Informed, 
Mt   He    must   be    Prepared    to    Convince   Others. — Having  consented  to 
appear,  and  to  testify  to  certain  opinions,  beliefs,  or  truths,  it  now  becomes 
the  office  of  the  expert  engineer  to  maintain  his  position,  and  to  prove  his 
•conclusions  beyond  question.     To  accomplish  this  object  he  should  spare 
no  efforts.     He  must  not  only  be  fully  informed  himself  of  all  the  facts, 
•circumstances,  and  agencies  which  have  brought  about  the  results  claimed, 
but  he    must    be   prepared   to   intelligently   present   them   to  the-  court 
and  jury;  to  show  them  the  relative  positions  of  objects  that  figure  in  the 
case,  their  purpose,  condition,  and  effect.     To  what  extent  he  should  carry 
these  preparations,  and  how  far  he  may  utilize  them,  will  now  be  con- 
sidered. 

276.  Use  of  Books  by  Expert  Witness. — Books  of  science  cannot  in  general 
be  utilized  in  court  as  evidence  to  prove  the  declarations  and  opinions 
which   they  contain.1      The   reason  for  this   rule  is  that  the  writer  was 
not  under  oath  when   he  wrote  the   opinions,  and   it  may  be   that  new 
•circumstances  have  arisen,  and  new  discoveries  since  come  to  light,  under 
which  his  beliefs  would  be  changed.     Furthermore,  the  author  is  not  in 
court,  he  cannot  be  cross-questioned,  the  jury  have  not  the  opportunity  to 
observe  the  effect  of  questioning,  or  to  judge  of  the  character  and  disposi- 
tion of  the  writer. 

The  force  of  these  reasons  does  not  exist  when  an  expert  adopts  or  rati- 
iies  the  contents  of  a  book,  and  offers  the  opinions  of  the  author  as  his  own. 
He  is  then  presumed  to  have  considered  and  weighed  the  assertions  of  the 
book,  and  to  have  reached  a  conclusion  of  his  own,  which  he  is  giving  in  a 
court  of  justice,  and  under  the  solemnities  of  an  oath.  Experts  are  not, 
therefore,  confined  wholly  to  their  personal  knowledge  and  experience,  but 
may  give  their  opinion  formed  in  part  from  reading  of  books.  They  may 
give  the  source  of  their  opinions,  and  state  that  all  writers,  so  far  as  they 
know,  support  the  same  opinion.8  They  cannot,  however,  be  compelled  to 
name  the  particular  books,  even  when  they  state  that  their  opinions  are 
based  upon  standard  works.3  It  has  been  held  that  an  expert  cannot  read 
from  his  own  published  works  to  support  his  testimony,  especially  when  the 
witness  does  not  testify  as  to  the  truth  of  the  extracts  read.4 

Testimony  as  to  matters  gained  from  the  study  of  standard  works,  rather 

1  State  tf.  Baldwin  (Kan.),  12  Pac.  Rep.  3  Taylor  on   Evidence:  People  v.  Van- 
318;   7   Amer.  &  Eng.  Eiicy.    Law  513;  derhoof  (Mich.),  39  N.  W.  Rep.  28  [1888]; 
Johnston  v.  Richmond  &  D.  R.  Co.  (Ga.),  Marshall  v.  Brown  (Mich.),  15  The  Reptr. 
22  S.  E.  Rep.  694.  693  [1883J;  32  Alb.  Law  Jour.  54. 

2  State  t>.  Baldwin  (Kans.),  12  Pac.  Rep.  4  Mix  v.  Staples,  17  N.  Y.  Supp.  775, 
318  [1887].  Justice  O'Brien  dissenting. 


g  276.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  273 

than  from  actual  practice,  is  admissible,1  and  the  fact  that  the  witness's 
knowledge  of  the  subject  is  limited  to  what  he  has  derived  from  books  is 
not  a  valid  objection  to  his  testimony.  He  is  entitled  to  speak  from  the 
accepted  facts  of  the  science.'  Physicians  have  been  permitted  to  give 
knowledge  and  opinions  confessedly  not  from  their  own  observation  and 
experience,  but  merely  from  reading  and  studying  medical  authorities.3 
When  books  are  referred  to  for  authority,  or  to  strengthen  opinions,  the 
opposition  may  bring  the  same  books  in  evidence  to  test  the  witness's  knowl- 
edge, or  to  contradict  him  or  his  opinion.4 

Rules  for  the  construction  of  cuts  and  embankments,  given  by  an  engi- 
neer, and  though  acknowledged  to  have  been  given  solely  from  his  recollec- 
tions of  what  he  had  read  in  Mahan,  (rillespie,  Gilmore,  and  other  authori- 
ties on  engineering,  were  received  as  competent.6  It  is  therefore  submitted 
that  though  books  themselves  are  not  admissible  to  prove  the  declarations 
they  contain,  yet  their  statements  and  opinions  may  be  brought  to  the  court 
and  jury  through  the  mouths  of  skilled  witnesses.  The  expert  engineer 
should,  to  that  end,  seek,  collect,  and  prepare  the  opinions  of  learned  authors 
to  sustain  his  position  and  carry  conviction  to  the  minds  of  court  and  jury. 
If  contents  of  books  are  to  be  introduced,  they  must  be  ushered  in  through 
the  familiar  acquaintance,  and  by  the  quotations  and  references,  of  skilled 
witnesses. 

Books  cannot  be  read  to  a  witness  and  the  questions  plied  to  prove  their 
contents.6  Their  contents  must  have  been  previously  known.  Though  they 
cannot  be  read  to  a  witness  for  the  purpose  of  showing  facts  set  forth,  yet 
questions  may  be  read  from  a  book  on  technical  science  for  the  purpose  of 
making  the  questions  more  intelligible.7  The  use  of  a  standard  authority 
on  the  subject  of  inquiry  has  been  permitted  to  shape  questions  put  to  an 
-expert,  and  he  has  been  required  to  examine  and  read  from  the  book  for  the 
purpose  of  testing  his  knowledge  of  the  subject.8 

Books  may  also  be  read  to  a  jury  in  the  argument  by  counsel,  not  to 
prove  matters  of  opinion,  or  of  fact,  but  to  support  arguments  presented. 
Counsel  should  not  be  allowed  to  read  to  a  jury  from  a  legal  text-book,9 
and  permission  to  read  the  law  to  the  jury  is  within  the  discretion  of  the 
trial  judge.10  Current  schedules  of  prices  in  trade,  calendars,  life-tables, 
and  so  forth,  have  been  admitted,  and  it  is  submitted  that  in  the  same  cate- 

1  Fordyce  ®.   Moore  (Tex.),   22  S.   W.          B  Central  R.  R.  Co.  v.  Mitchel,  63  Ga. 
Rep.  235;  Hardiman  «.  Brown  (Mass.),  39      173. 

1ST.  E.  Rep.  192.  •  50  Mich.  148  and  296  and  629. 

2  Marshall    v.    Brown  (Mich.),   12  The  T  Thompkins  «.  West,  56  Conn.  478. 
Reptr.    693   [1883],   and  32  Albany  Law  8  Byers  v.  Nashville,  C.  &  St.  L.  Ry.  Co. 
Journal  54.  (Tenn.),  20  S.  W.  Rep.  128. 

3  Rogers'  Expert  Testimony  28;  City  of  9  Yarbrough  «.  State  (Ala.),  16  So.  Rep. 
Jackson  v.  Boone  (Ga.),  20  S.  E.  Rep.  46.  758. 

4  Marshall    v.    Brown    (Mich.)    [1883],  10  Forbes  v.  State  (Tex.),  29  S.  W.  Rep. 
supra;    People   v.    Vanderhoof    (Mich.),  784. 

supra  ;  Taylor  on  Evidence. 


274    .ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  277. 

gory  can  be  classed  standard  tables  of  sines,  cosines,  logarithms,  multipli- 
cation  tables,  etc.1 

In  general,  it  may  be  stated  that  books  will  not  be  admitted  as  evidence 
of  the  facts  they  contain.  Their  statements  cannot  be  used  directly  to  prove 
the  size  or  shape  of  a  member  of  a  structure,  nor  what  is  or  is  not  a  proper 
construction  of  a  piece  of  work.  If  the  engineer  wishes  to  back  up  his 
assertions  by  the  authority  of  books  he  must  prepare  himself  upon  the  sub- 
ject, and  give  others'  opinions  as  his  own.  Questions  as  to  materials,  what  is 
"a  good  and  workmanlike  manner,"  what  is  "hard-pan,"  cannot  be  proven 
by  reading  directly  from  a  book.2 

Whatever  beliefs  or  opinions  the  engineer  may  wish  to  advance  must  be- 
his  own.  He  may  have  acquired  them  from  reading  or  the  study  of  books, 
he  may  mention  books  or  cite  authority,  but  he  cannot  read  the  books  in 
court,  nor  literally  quote  the  author's  statements.  He  must  express  his  own 
indvidual  opinion  and  may  give  in  support  of  his  conclusions  the  fact  that 
others  have  arrived  at  the  same  decision,  or  that  other  engineers  hold  to  the- 
same  views.3 

277.  Witness  may  Use  a  Book,  Chart,  or  Prepared  Memoranda  to  Refresh 
His  Memory. — What  has  been  said  need  not  convey  the  idea  that  the  engi- 
neer's preparation  requires  him  to  memorize  whole  pages  of  printed  matter, 
for  he  may  take  his  books,  maps,  and  notes  into  court  and  on  to  the  wit- 
ness-stand with  him  and  refer  to  them,  to  refresh  his  memory,  upon  questions 
in  doubt.  He  may  draw  up  a  written  narrative,  make  written  memoranda 
of  a  subject  or  transaction,  and  use  it  while  under  examination  as  a  script  to 
refresh  his  memory.4  If  he  is  able  to  testify  (1)  that  the  statements  con- 
tained in  such  memoranda  are  accurate  in  his  present  recollection,  or  (2) 
that  from  his  present  recollection  the  memoranda  were  accurate  when  made, 
he  may  refresh  his  memory  by  examination  of  memoranda  regarding  dates, 
figures,  results  of  calculation,  minutes  of  testimony,  and  the  like,  whether 
such  memoranda  has  been  made  by  the  party  himself  or  by  any  other  person. 
An  engineer  may  make  use  of  a  map  made  by  him,  with  figures  representing 
lengths  of  lines,  areas,  and  quantities,  and  testify  from  it.  Whether  such 
maps  and  calculations,  so  employed,  become  evidence  of  themselves,  is  in 
dispute.  If  positively  testified  to  by  the  witness,  they  are  admissible;  if 
sworn  to,  that  the  figures  well  and  truly  represent  the  true  distances,  quanti- 
ties, and  areas,  they  may  become  evidence.  In  the  discretion  of  the  court  they 
may  be  allowed  to  go  to  the  jury,  and  be  taken  out  with  them  when  they  re- 
tire as  a  memoranda  of  the  distances,  areas,  and  quantities  as  sworn  to  by  the 
engineer.6  As  a  witness  he  cannot  read  from  his  memoranda,  even  though 

1  Morris  v.  Columbian  Dock  Co.  (Md.),      cited,  see  Central  Law  Journal,  vol.  5,  p. 
25  Atl.  Rep.  417;  Richmond  &  D.  R.  Co.  v.      439,  and  vol.  15,  p.  88. 

Hisong  (Ala.),  13  So.  Rep.  209.  3Lawson's  Exp.    &  Opin.   Evdce.    169 

2  Lawson's  Expert  and  Opinion  Evdce.       et  seq. 

187-192.     For  an  article  on  Books  of  Sci-          4Best  on  Evidence  (Chamb.  ed.)  227. 
ence  as  Evidence,  in  which  many  cases  are          5Nefl  v.  Cincinnati,  32   Ohio   St.  215; 


§  277.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  275 

made  by  himself;  be  can  refresh  his  memory  by  looking  at  the  writing,  but 
be  must  testify  from  his  recollections.1  Even  though  the  memoranda  is  not 
admissible  as  evidence,  he  may  use  it,  if  he  knows  it  to  have  been  correct 
when  it  was  made,  to  refresh  his  memory,  after  which  he  must  testify  to  the 
original  facts.3  The  memoranda  is  not  of  itself  competent  evidence  to  prove 
the  facts  stated.3  In  general,  such  memoranda  employed  by  a  witness  to  re- 
fresh his  memory  must  be  verified  as  correct 4  before  it  can  itself  become 
evidence.5  If  an  engineer  swear  that  the  figures  upon  a  plat  representing 
lengths  of  lines,  areas,  and  quantities  are  correct  and  represent  the  true 
distances,  areas,  and  quantities,  it  may  become  evidence,  and  the  trial  court 
may  in  its  discretion  allow  the  jury  to  take  the  plat  with  them  as  a  memoranda 
when  they  retire.6  If,  however,  the  witness  has  no  recollection  of  the  facts 
contained  in  a  memorandum  independent  thereof,  yet  testifies  thereto  in  full, 
it  is  not  error  for  the  trial  court  to  refuse  to  admit  the  memorandum  itself  as 
evidence.7 

A  witness  may  refresh  his  recollection  by  reference  to  any  memoranda 
relating  to  the  subject-matter  to  which  his  attention  is  directed  on  the  stand, 
whether  such  memoranda  is  competent  evidence  or  not,  and  then  he  may 
testify,  if  he  has  then  any  independent  recollection  of  such  subject-matter.8 
This  is  not,  however,  a  general  rule.9 

Memoranda  of  facts  that  occurred,  must  have  been  made  at  the  time  or 
recently  after  the  event.  If  made  weeks  or  months  thereafter,  they  cannot 
be  used  to  refresh  the.  memory,  nor  can  they  if  made  at  the  recommendation 
of  one  of  the  parties.10  Memoranda  made  by  a  workman  from  day  to  day,  in 
the  ordinary  course  of  business,  may  be  used  to  show  the  days  his  employer 
worked  on  a  certain  building."  An  architect's  certificate  has  been  admitted 
some  time  after  the  facts  of  the  case, but  from  measurements  and  notes  made 
contemporaneously  with  the  work.12  In  general,  a  witness  must  swear  to  the 
facts  contained,  if  he  will  give  testimony  of  things  in  a  document  which  he 
is  using  to  refresh  his  memory.13 

Cunningham    v.    Massena,    etc.,    R.    Co.  and   see    Commonwealth    v.    Burke,    114 

(Sup.).  18  N.  Y.  Supp.  600.  Mass.  261;  Merril  v.  The  Ithaca  &  O.  R. 

1  Wilde  v.  Hexter,  50  Harbour  448.  Co.,  16  Wend.  586;  Bissell  «.  Mich.  South- 

'Bonnette  v.  Gladtfeldt,  11  N.  E.  Rep.  ern,  etc.,  R.  Co.,  22  N.  Y.  262;  Halsey  «. 

250  (Ills.)  1887;  Meade  «.  White  (Pa.),  8  Siucebaugh,    15    N.  Y.   485;    Harvey    v. 

All.  Rep.  912  [1887.]  United  States,  113  U.  S.  243. 

3Baum  v.  Reay  (Cal.),  29  Pac.  Rep.  117.  10  Spring  Garden  Mut.  lus.  Co.  v.  Evans, 

4  Elder  v.  Reilly  (Minn.),  51  N.  W.  Rep.  15  Md.   54    [1859];    Howell    v.    Bowman 

226;    City   of   Birmingham  v.   McPoland  (Ala.),  10  So.  Rep.  640;  see  also  Btmm  v, 

(Ala.),  11  So.  Rep.  427.  Reay  (Cal.).  29  Pac.   Rep.   417;  Anderson 

5Klepsch  v.   Donald  (Wash.),    35  Pac.  v.  Imhoff  (Neb.),  51  N.  W.  Rep.  854. 

Rep.  621.  "Boughton  v.  Smith  (Sup.),  22  N.    Y. 

6Neff  v.  Cincinnati,  32  Ohio  St.  215.  Supp.  148. 

1  Butler  0.    Chicago,  B    &  Q.   R.    Co.  12  Sanders  *>.  Hutchinson,  26  Ills.  (Ct.  of 

(Iowa),  54  N.  W.  Rep.  208.  App.)  633  [1887];  also  Cunningham  v.  M. 

8  Denver  &  R.    G.    R.    R.    v.   Wilson  S.  &  Ft.  C.  R.  Co.,  18  N.  Y.  Supp.   600, 
(Colo.  App.),  36  Pac.  Rep    67;  McNeely  [1892],  citing  114  N.  Y  498. 

v.  Duff  (Kan.),  31  Pac.  Rep.  1061.  13  Harvey  v.  United  States,  113  U.  S.  243. 

9  King  v.  Inhabitants,  2  A.  &  E.  210; 


276       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE,   [§  278. 

278.  Use  of  Written  Memoranda  and  Copies  Thereof.— Bills  for  materi- 
als, drayage  checks,  and  weigh  checks  received  with  materials  delivered  at 
works  are  only  hearsay  evidence  of  the  quantities  of  materials  purchased  and 
put  into  a  structure,  when  the  witness  does  not  know  that  they  were  correct, 
.and  was  not  present  when  the  materials  were  delivered,  and  did  not  there- 
after measure  and  inspect  them. 1  Books  of  account,  containing  i terns  for  work 
.done  and  materials  furnished,  the  correctness  of  which  was  sworn  to  by  a 
.bookkeeper  who  did  not  see  the  work  done  or  the  goods  delivered,  and  who 
made  the  entries  from  memoranda  furnished  by  others,  are  inadmissible, 
where  one  who  had  personal  knowledge  of  the  doing  of  the  work  and  the 
furnishing  of  the  materials  was  present  at  the  trial,  and  was  not  called  to  the 
stand.3  However,  the  fact  that  books  of  account  contain  some  errors  does 
not,  in  the  absence  of  evidence  that  the  books  were  fraudulently  falsified, 
necessarily  render  them  incompetent.3 

If  the  original  memorandum  has  been  lost  or  destroyed,  the  witness  may 
use  a  copy  to  refresh  his  memory,  if  he  testify  that  the  figures  or  estimate  to 
be  used  were  made  at  the  time  of  the  measurement  of  the  work  and  that 
they  are  correct,  and  also  that  the  copy  is  a  correct  one.4  So  held  of  a  blue 
print.5  Proof  of  loss  of  books,  so  as  to  admit  the  testimony  of  the  book- 
keeper as  to  their  contents,  is  sufficiently  shown  by  his  testimony  that  he 
made  diligent  search  for  the  books,  and  found  some  of  them  in  the  cellar  of 
the  store,  in  some  old  rubbish,  and  among  them  the  covers  of  the  books  in 
question,  but  the  insides  of  them  had  been  torn  out  an'd  taken  away,  and  he 
oould  not  find  them.6  The  copy  becomes  the  best  evidence  of  the  contents 
of  the  original  book  or  document,  and  is  admissible,  while  parol  evidence 
of  its  contents,  if  it  be  a  written  instrument,  is  not  admissible.7 

A  stenographer's  notes  of  the  witness's  testimony  given  at  a  former  trial, 
when  the  stenographer  has  shown  that  he  took  the  notes  and  that  they  are  cor- 
rect, may  be  read  to  impeach  the  witness's  present  testimony,  even  though  the 
stenographer  has  no  recollection  of  what  the  witness'said.8  So  where  the  books 
of  original  account  have  been  destroyed,  the  items  therein  maybe  proved  by 
the  ledger.9  A  manager  of  a  firm  business,  it  seems,  cannot  use  such  a  book 
to  refresh  his  memory,  if  he  did  not  make  the  entries,  or  see  them  made,  nor 
assure  himself  of  their  correctness  when  the  matters  were  fresh  in  his  memory.10 
Nor  if  such  entries  were  made  by  a  party  to  the  suit  in  his  own  behalf.11 

1  McCormick  v.  Saddler  (Utah),  37  Pac.  7  Dillon  v.  Howe  (Mich.),  57  N.  W.  Rep. 
Rep.  332.  102. 

2  Dodge  i).  Morrow  (Ind.  App.),  43  N.  E.  8  Klepsch  «.    Donald   (Wash.),   35  Pac. 
Rep.  153.  Rep.  621. 

3  Levine  v.  Lancashire  Ins.  Co.  (Minn.),  9  McCrady  v.  Jones  (S.  C.),  15  S.  E.  Rep. 
68  N.  W.  Rep.  855.  430. 

4  Anderson  v.  Imhoff  (Neb.),  51  N.  W.  10  Fritz  v.  Burgiss  (S.  C.),  19  S.  E.  Rep. 
Rep.  854.  304;  but  see  Levine  v.  Lancashire  Ins.  Co. 

s  Currier  «.  B.  &  M.  R.   Co.,  31  N.  H.  (Minn.),  68  N.  W.  Rep.  855. 

225  [1855].  »  Doty  v.  Smith  (Sup.),  22  N.  Y.  Supp. 

6  Stanfield  «.  Knickerbocker  Trust  Co.  840. 
(Sup.),  37  N.  Y.  Supp.  600. 


§  280.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  277 

It  is  proper  to  read  to  a  witness  extracts  from  evidence  given  by  him  on  a> 
previous  trial  to  cause  him  to  recollect  the  facts  as  he  testified  on  a  former' 
trial; *  and  a  witness,  either  on  direct  or  cross  examination,  may  be  com- 
pelled to  inspect  a  writing,  if  it  is  in  his  own  handwriting  or  there  is  reason 
to  believe  it  will  refresh  his  memory.2  The  use  of  memoranda  to  refresh 
one's  memory  has  been  held  a  matter  largely  discretionary  with  the  trial 
court.3 

279,  Use  of  Maps,  Plans,  Photographs,  and  Models  in  Court.— It  being 
well  established  that  memoranda,  books,  and  maps  may  be  employed  to  illus- 
trate, explain,  and  prove  the  expert's  opinions  and  testimony,  the  next  sub- 
ject for  consideration  is  what  preparations  to  make.  First  of  all  a  complete? 
understanding  of  the  facts,  circumstances,  and  surroundings  of  the  case, 
and  the  preparation  of  diagrams,  models,  and  other  means  of  presenting 
them  to  the  court  and  jury.  The  conditions  and  surroundings  attending  a 
problem  are  primary  in  the  determination  of  results;  small  technicalities 
often  make  an  entire  change  in  the  results  and  deductions  to  be  drawn  from 
certain  facts.  If  possible,  the  locality  should  be  visited  and  carefully  exam- 
ined, that  the  expert  may  be  familiar  with  all  its  peculiarities.  If  the  occa- 
sion requires  it,  a  careful  survey  and  map  of  the  ground  should  be  made~ 
Samples  and  pieces  may  be  taken  of  the  soil,  structure,  and  materials. 

An  ex  parte  map  made  by  a  witness,  and  shown  to  be  correct,  may  be  in- 
troduced,  not  as  independent  evidence,  but  to  be  considered  by  the  jury  in 
connection  with  other  evidence.4  A  civil  engineer  who  has  made  a  survey 
of  the  locality  may  testify  that  there  was  no  obstruction,  and  that  the  head- 
light of  a  train  would  be  visible  from  points  in  the  neighborhood  of  the 
scene  of  a  collision.5 

280.  Use  of  Photographs  as  Evidence. — Photographic  views  should  be 
taken  from  selected  positions,  which,  if  sworn  to  as  being  true  representa- 
tions of  what  they  profess  to  be,  may  be  introduced  in  evidence.6  The  value 
of  photographic  views  cannot  be  overestimated.  They  are  invaluable  ira 
case  of  destruction  of  buildings  or  other  structures  by  wind,  flood,  or  fire,. 
They  are  much  easier  to  comprehend  than  are  maps  or  plans  by  jurymen^ 
and  they  are  quite  difficult  of  misrepresentation,  and  are  now  generally 
accepted  as  evidence.  They  show  elevations  and  depressions,  distances  and! 
shapes  as  they  naturally  appear  to  the  eye,  and  are  more  convincing  to  both 
jury  and  judge.  They  are  quickly  and  cheaply  made,  and  are  comprehensible 
to  the  most  uneducated  and  unskilled,  and  are  received  for  nearly  all  pur- 
poses and  in  all  cases  where  the  original  object  cannot  be  had.  It  must  be 

1  Ehrisman  t>.  Scott  (Ind.  App.),  32  N.  17   S.  E.    Rep.   794;    Roderiquez  v.  State 

E.  Rep.  867.  (Tex.),  22  S.  W.  Rep.  978;  McVey  v.  Dar- 

2 State  v.  Stanton  (N.  C.),  19  S.  E.  Rep.  kin  (Pa.),  20  Atl.  Rep  541  [1890]. 

96.  5  Chicago,   etc.,    Ry.    Co.  v.   Chambers- 

3  Michigan  Ins.  Co.  v.  Wich  (Colo.),  46  (C.  C.  A.),  68  Fed.  Rep.  148. 

Pac.  Rep.  687.  6  Howard  v.   Russell,    12  S.    W.  Rep,. 

4  Poling  v.  Ohio  River  R.  Co.  (W.  Va.),       525;  German  T.  S.  v.  City  of  Dubuque,  64 
18  S.  E.  Rep.  782;  State  0.  Harr  (W.  Va.),      Iowa  736. 


278     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.   [§  280. 

admitted  that  photographs  taken  from  one  point  of  view  to  determine  matters 
of  size,  relative  proportions,  grade,  etc.,  might  be  very  misleading,  as  very 
different  results  can  be  obtained  by  tilting  the  photographic  apparatus 
(camera),  or  by  being  too  near  the  object,  resulting  in  distortions;  but  when 
a  set  of  photographic  views  are  made  of  an  object  from  different  points  of 
view  and  at  varying  distances,  it  is  a  very  difficult  matter  to  make  a  mis- 
representation of  the  object  and  its  attendant  conditions. 

The  following  examples  serve  to  show  their  admissibility  and  value :  They 
have  been  admitted  "to  show  damage  to  premises  injured  by  water/'1 
or  by  a  change  of  grade  of  a  street,2  to  show  wrecks,3  and  of  broken  parts 
of  fallen  structures,  to  show  the  obstruction  to  drainage  of  a  turnpike  by  the 
erection  of  a  bridge  or  causeway,4  to  sho.w  a  defective  sidewalk.5  Photo- 
graphic views  of  streets,  buildings,  railroad  tracks,  bridges,  etc.,  have  been 
admitted.6 

Photographs  may  be  received  of  deeds  and  descriptions  taken  from  public 
records  which  could  not  be  withdrawn,  such  as  to  show  boundaries,7  and  to 
identify  and  describe  premises  in  dispute,8  to  identify  persons,9  a  lot  of  jew- 
elry,10 and  to  show  the  severity  of  wounds  due  to  an  assault;  and  the  fact 
that  the  expression  of  the  injured  person's  face  was  such  as  would  tend  to 
prejudice  the  jury  is  not  sufficient  to  show  error  in  allowing  it  to  be  used, 
the  photograph  not  being  included  in  the  record.11  They  have  been  ad- 
mitted to  identify  documents,  and  in  place  of  the  original  if  the  original 
document  itself  cannot  be  had,13  and  to  show  field  notes  of  a  survey.13 

Photographic  copies  on  a  large  scale  have  been  admitted  to  show  com- 
parisons of  handwriting,14  but  such  copies  have  been  excluded  when  not 
offered  for  comparison  with  enlarged  copies  of  the  genuine  signature.15  Tes- 
timony as  to  the  genuineness  of  handwriting  has  been  extended  to  a  mark 
or  cross  by  means  of  which  an  illiterate  person  signed  his  name,  its  weight 


1  64  la.  736.  8  Blair  v.  Pelham,  118  Mass.  421 ;  Mulbado 

2  31  Wis.  512.  v.  R.  R.  Co. ,  30  N.  Y.  370 ;  Cooper  v.  St.  Paul 

3  Kansas  R.  Co.  v.  Smith  (Ala.),  8  So.  City  Ry.  Co.  (Minn.),  56  N.  W.  Rep.  42. 
Rep.  43  [1890];  46  la.  109.  9  Udderzook  v.  Commonwealth,  76  Pa. 

4  Chestnut  H.  Tk.  Co.  «.  Piper,  Penna.  St.  352;  Peoples.  Smith.  121  N.  Y.  578. 
Sup.  Ct.,  Jan'y  1884.  '°  59  Fed.  Rep.  684;  Rulof  v.  People,  45 

6  Barker  v.  Town  of  Perry  (la.),  25  N.  N.  Y.  213. 

W.  Rep.  100  [1885].  »  Cooper  v.  St.  Paul  City  R.  Co.,  supra. 

•  Glasier  v.  Town  of  Hebron,  16  N.  Y.  12  In  re  Foster  (Mich.)  3  Am.  Law  Times 

Supp.  503,  an  embankment;  see  Locke  v.  Rep.  411  [1876];  see  also  Eborn  v.  Zimple- 

JSioux  City  &  P.  R.  Co.,  46  la.  109;  Red-  man  (Tex.)  [1877] ;  Haynes  v.  McDermott, 

din  v.  Gates,  52  la.  210;  German  T.  S.  t>.  11  Cent.  L.  J.  378. 

City  of  D.,  17  N.  W.  Rep.  153;    Udder-  ls  Ayers  v.  Harris  (Tex.),  13  S.  W.  Rep. 

zooks  Case,  76  Peun.    St.    340;  Ruloff  v.  768  [1890]. 

People,  45  N.  Y.  213;  Marcey  «.  Barnes,  u  Marcy  v.  Barnes,  82  Mass.  161;  but  see 

16  Gray  162;  note  26  Am.  Repls.  319;  note  Hynes  v.  McDermott  (N.  Y.),  22  Alb.  L.  J. 

38  Amer.    Rep.   474;  note  23  Alb.    Law  367  [1880];  also  Tome  v.  Parkerburgh  B. 

Journal  182;  Cozzens  v.  Higgins,  3  Keyes  R.  Co..  39  Md.  37  [1873]. 

206,  a  cellar  floor;  Dedrichsa.  Salt  Lake  C.  15  White  S.  M.  Co.  v.  Gordon  (Ind.),  24 

R.  Co.  (Utah),  46  Pac.  Rep.  656.  N.  E.  Rep.  1053;  and  see  Geer  v.  Lumber 

1  20  Alb.  L.  J.  4.  Co.  (Mo.),  34  S.  W.  Rep.  1099. 


§  282.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  279 

being  for  the  jury.1  The  question  of  admissibility  of  photographs  is  one 
largely,  if  not  entirely,  for  the  trial  judge; 2  it  is  within  his  discretion  to 
admit  a  photograph  of  a  plaintiff  in  a  damage  suit,  as  evidence  of  the  claim- 
ant's health  and  strength  at  the  time  of  the  injury,3  or  to  show  the  effect  of 
a  flood  from  a  dam  that  had  given  way.4  The  rejection  of  a  photograph  of 
premises  whose  boundaries  are  in  dispute  does  not  furnish  a  ground  of 
exception.5  Photography  is  almost  indispensable  to  the  expert  in  the 
enlarged  representation  of  minute  objects  or  to  emphasize  details 8  not  easily 
recognized  by  the  naked  eye.  In  all  cases,  either  the  witness  himself  or  the 
photographer,  or  some  one  familiar  with  the  locality,  should  be  called  to 
testify  that  the  photograph  is  a  correct  likeness  or  representation  of  the 
original  object  or  locality.7 

281.  Expert  Witness  should  Fortify  His  Opinions  with  Authority  and 
Undisputed  Facts. — The  expert  having  made  all  arrangements  for  the  care- 
ful and  critical  representation  of  the  circumstances,  he  must  next  prepare 
himself  to  present  his  case  clearly  and  forcibly.     Although  he  need  not  be 
familiar  with  the  language  of  the  authors-or  books  he  quotes  or  refers  to,  he 
should  be  acquainted  with  the  substance  and  theory  of  the  subject,  and 
know  the  volume  and  page  in  which  it  is  contained.     He  should  review  his 
notes  and  memoranda  of  his  past  work  and  experience,  compare  it  with  the 
books,  reports,  and  views  of  other  engineers,  check  them  by  computations  and 
experiments,  and  use  every  exertion  to  determine  what  is  and  what  is  not 
the  true  merit  of  the  question. 

His  reasons  should  be  formulated  and  prepared,  for  he  may  or  may  not 
be  asked  to  explain  the  reasons  of  his  opinions. 

282.  Experts  should  Seek  the  Confidence  and  Respect  of  the  Court. — In  his 
preparation,  the  engineer  always  should  have  in  mind  the  presentation  of  plain 
truth  in  plain  English.     It  should  be  his  aim  and  effort  to  gain  the  respect, 
confidence,  and  good  will  of  the  court  and  jury.     His  competency  and  privi- 
leges depend  upon  the  impression  made  upon  the  court  and  the  discretion 
and  judgment  it  may  exercise.     It  should  be  his  highest  endeavor  to  present 
his  beliefs  and  opinions  by  the  most  convincing  proofs,  and  in  a  manner  that 
may  be  fully  comprehended  by  every  member  of  the  court  and  jury.     New 
and  unaccepted  theories,  foreign  phrases,  terms,  and  titles,  and  technical  dis- 
tinctions, cannot  have  the  weight  of  plain  Anglo-Saxon   common-sense,  or 
some  simple  illustration  in  every-day  life.     A  sensible,  moderate,  earnest 

1  State  v.  Tice  (Oreg.),  48  Pac.  Rep.  367.          6  Marcy  «.  Barnes,  82  Mass.  161;  and  see 

2  Verran  v.  Baird  (Mass.),  22  N.  E.  Rep.       9  Amer.  Law  Rvw.  173. 

€30  [1889];  Cleveland,  C.,  C.  &  St.  L.  Ry.  7  Nies  v.  Broadhead,  27  N.  Y.  Supp.  52, 

Co.  v.  Monaghan  (Ills.),  30  N.  E.  Rep.  869  also  Roosevelt  H.  v.  N.Y.  El.  R.  Co.,  21  N. 

[18921  Y.  Supp.  205;  Miller  v.  L.  N.  A.  &  C.  Ry. 

3  Gilbert  v.  West  End  St.  Ry.  (Mass.),  36  Co.  (Ind.),  27  N.  E.  Rep.  339  [1891];  Leid- 
N.  E.  Rep.  60.  lein  «.  Meyer  (Mich.),  55  N.  W.  Rep.  367; 

4  Verran  v.  Baird  (Mass.),  22  N.  E.  Rep.  Hollenbeck  v.  Rowley,  8  Allen  473  [1864], 
630  [1889].  which  seems    to    hold   that  photographer 

5  Hollenbeck  D.  Rowley,    8    Allen  473  must  verify  the  picture  under  oath. 
[1864]. 


280     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  283. 

disposition  to  present  one's  views  plainly  and  clearly  for  what  they  are  worth  r 
a  careful  avoidance  of  any  effort  to  force  conviction  into  the  minds  of  the 
court,  is  far  more  effective  than  any  attempts  to  show  how  very  simple  and 
plain  the  one  side  is  and  how  preposterous  and  unheard  of  are  the  opinions 
of  the  opposite  side.  A  simple  acknowledgment  that  contrary  opinions 
exist,  and  the  fact  that  witness  is  familiar  with  them,  has  considered  and 
weighed  both  sides  of  the  question,  and  has  come  to  his  conclusion  by  study 
observation,  and  reasoning,  will  carry  with  them  much  stronger  convictions 
than  any  amount  of  blustering. 

Force  cannot  exist  without  counter  resistance  in  mechanics,  and  this  is 
equally  true  in  argument.  The  moment  a  witness  insists  or  undertakes  to- 
impose  his  views,  that  moment  he  arouses  resistance  in  his  listeners,  which 
renders  his  efforts  the  more  unavailing.  Much  depends  upon  the  good  opin- 
ion of  the  court.  It  is  within  its  power  to  permit  or  deny  the  engineer  the 
privilege  of  testifying,  to  determine  whether  the  witness  comes  within  the 
requirements  of  an  expert,  which  is  in  nowise  a  question  for  the  jury.1 

283,  Trial  Court  Determines  the  Privileges  of  an  Expert  Witness.— The 
preliminary  question  whether  a  witness  offered  as  an  expert  has  the  neces- 
sary qualifications  is  for  the  court,  and  is  largely  within  its  discretion.1 
Unless  it  appears  from  the  evidence  that  the  trial  court's  decision  was  erro- 
neous or  founded  on  an  error  in  law,  it  is  conclusive.3 

If  it  be  apparent  that  expert  testimony  would  tend  to  assist  the  jury  in 
coming  to  a  conclusion  on  the  facts,  it  is  not  error  for  the  trial  court  to- 
admit  it.4  It  has  been  held  no  error  for  the  trial  judge  to  refuse  to  receive 
the  expert  testimony  of  a  professor  of  civil  engineering  who  has  made  the  law 
of  moving  bodies  a  study  and  can  tell  how  far  a  train  will  move  by  its 
momentum,  as  to  the  distance  a  train  would  travel,  on  a  question  to  contra- 
diet  the  testimony  of  other  witnesses  testifying  from  practical  experience, 
on  appeal.6 

The  manner  and  extent  to  which  an  expert  may  refresh  his  recollections 
by  references  to  memoranda  or  books  is  also  determined  by  the  presiding 
judge — a  discretion  that  may  be  exercised  with  reference  to  the  circum- 
stances of  the  case  and  sometimes  with  reference  to  the  conduct  and  bearing 
of  the  witness  upon  the  stand.8 

In  the  furtherance  of  justice,  the  court  may  in  its  discretion  depart  from 

1  Jones  v.  Tucker,  41  N.  H.  546  [I860];  983;  see  also  Santa  Cruz  v.  Enright(Cal.),  30 
Mut.  F.I.  Co.  -».  Alvord  (C.  C.  A.),  61  Pac.  Rep.  197;  and  Chateaugay  O.  &  J.  Co. 
Fed.  Rep.  752.  v.  Blake,  12  Sup.  Ct,  Rep.    731,  as  to  the 

2  Sneda  v.  Libera  (Minn.),  68 N.  W.  Rep.  capacity  ofanore crusher;  Campbell  v.  Rus- 
36;  Helfenstein  v.  Medart  (Mo.  Supp.),  36  sell,  139  Mas*.  278  [18851.  and  cases  cited. 
S.  W.  Rep.  863;  Beckett  v.   N.  W.  Ma-  4  State  v.  Hendel  (Idaho),  35  Pac.  Rep. 
sonic  Aid  Ass'n  (Minn.),  69  N.  W.  Rep.  836. 

923.  5  Blue  v.  Aberdeen  &  V.  E.  R.  Co.  (N. 

3  Mangban  v.  Burns  Estate  (Vt.),  23  Atl.       C.),  23  S.  E.  Rep.  275. 

Rep.    583;  St.   Louis  &  S.    F.  Ry.  Co.  t>.  6  Johnson  v.  Coles,  21  Minn.  108  [1874]; 

Bradley,    54  Fed.  Rep.  630;   HowL.nd  v.       Wabash  ft.  Co.  v.  Defiance  (Ohio),  40  N. 
Oakland  St.  Ry.  Co.  (Gal.),  42  Pac.  Rep.      E.  Rep.  89. 


§  284.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  281 

the  usual  order  of  introducing  testimony.  It  may  permit  experts  to  testify 
before  the  establishment  of  facts  by  the  other  witnesses.1  It  determines  the 
propriety  of  questions  asked,  and  it  is  within  its  discretion  to  reject  ques- 
tions put  to  witnesses,  if  in  its  opinion  they  do  not  bear  upon  the  question 
at  issue.  Questions  to  experts  are  in  a  large  measure  hypothetical  and 
remote,  and  are  likely  to  receive  a  much  more  liberal  consideration  under  a 
good  impression  on  the  part  of  the  judge  than  in  the  face  of  distrust  and 
fear.2  After  the  witness  has  given  his  own  professional  opinion  in  reference 
to  what  he  has  seen  and  heard,  or  upon  hypothetical  questions,  it  is  then 
within  the  court's  discretion  to  limit  further  interrogatories  as  to  what  other 
scientific  men  have  said  on  such  matters,  or  in  respect  to  the  general  teach- 
ings of  science  thereon.3 

The  extent  to  which  the  temper  and  disposition  of  a  witness  may  be 
shown  on  cross-examination  is  largely  within  the  discretion  of  the  trial 
court; 4  and  the  extent  to  which  it  may  be  pursued  to  test  his  memory  is 
within  the  discretion  of  the  court.5  In  cross-examination  a  witness  may  be 
asked  in  regard  to  any  interest  he  may  have  in  the  result  of  the  trial,  as 
affecting  his  credibility,6  and  he  may  be  asked  as  to  whether  the  examina- 
tions made  by  him  were  made  in  a  careful  or  a  superficial  manner.  Such  a 
question  is  not  objectionable  as  substituting  the  opinion  of  the  witness  for 
the  judgment  of  the  jury  on  that  point.7 

In  conclusion,  it  may  be  said  that  too  much  care  cannot  be  taken  in  the 
preparation  for  the  expert  witness-stand,  and  any  man  (engineer)  who  con- 
scientiously does  his  duty  will  merit  all  that  he  is  likely  to  get  for  his 
services. 

284.  Behavior  of  Expert  Witness  in  Court— When  will  Expert  Testi- 
mony be  Admitted. — An  expert's  duties  in  court  may  be  embraced  in  two 
classes  :  (1)  The  suggestions  and  promptings  he  may  give  to  the  attorney 
in  examination  of  other  witnesses,  and  (2)  his  offices  and  privileges  while 
upon  the  stand  himself.  Little  can  be  said  upon  the  former,  as  the  charac- 
ter and  amount  of  assistance  must  depend  upon  the  character,  disposition, 
and  private  ideas  of  the  individuals,  and  their  skill,  practice,  and  methods. 

As  a  general  rule,  opinions  of  witnesses  are  not  admissible  as  evidence; 
they  must  speak  as  to  facts  within  their  knowledge;  but  upon  questions  of 
skill  or  science,  with  which  the  jury  are  not  familiar,  men  who  have  made 
the  subject-matter  of  inquiry  the  object  of  their  particular  attention  or 
study  are  permitted  to  give  their  opinions.  They  are  admissible  (1)  when 
the  question  involves  subjects  which  are  beyond  the  determination  and  full 

1  City  of  Denver  v.  Dunsmore,  7  Colo.  4  Czezewzka  v.  Benton-Bellefontaine  Ry. 
328  [1884].  Co.  (Mo.  Sup.),  25  S.  W.  Rep.  911. 

2  Ha.  land  v.   Lillienthal,  53  K  Y.  438  5  Noblin  v.  "State  (Ala.),  14  So  Rep.  767. 
[1873]  ;  People  v.  Angaberry,  97  N.  Y.  501  6  Blenkiron  u.  State  (Neb.),  58  N.  W.Rep. 
[1884].  587. 

3  Davis  v.  United  States,  17  Sup.  Ct.  Rpp.  7  Northern  Pac.  R.  Co.  v.  Urlin,  15  Sup. 
360.  Ct.  Rep.  840. 


282     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  285. 

understanding  of  the  judge  and  jurors,  and  (2)  when  the  witness  offered  is 
fully  qualified  to  give  the  required  information. 

The  rule  determining  the  subjects  upon  which  experts  may  testify  and 
the  rules  prescribing  the  qualifications  of  experts  are  matters  of  law,  but 
whether  a  witness  offered  as  an  expert  has  those  qualifications  is  a  question 
of  fact  to  be  decided  by  the  court  at  the  trial.1  We  have  chiefly  to  deal 
with  the  law,  as  we  cannot  determine  the  judges'  opinions  of  individual  cases 
(or  person).  Courts  are  inclined  to  limit  the  testimony  of  experts  to  the 
rules  now  in  use,  and  to  confine  witnesses  to  facts  in  all  cases  where  practi- 
cable, and  to  leave  the  jury  to  exercise  their  judgment  and  experience  upon 
the  facts  proved.  Facts  may  be  specifically  contradicted,  and  if  witnesses 
testify  falsely  they  are  liable  to  punishment  for  perjury,  while  opinions  may 
not  be  proved  positively  wrong,  and  false  opinions  may  be  given  without 
fear  of  punishment.8 

The  fact  that  a  witness  may  know  more  of,,  or  may  better  comprehend, 
the  subject  than  the  jury  is  not  sufficient  to  authorize  opinion  evidence,  but 
it  must  relate  to  some  trade,  profession,  science,  or  art  in  which  the  expert 
has  more  skill,  and  can  pass  better  judgment  than  jurymen  of  average  intel- 
ligence.2 If  the  facts  can  be  placed  before  the  jury,  and  they  are  of  such  a 
nature  that  jurors  generally  are  as  competent  to  form  an  opinion  in  refer- 
ence to  them  and  to  draw  inference  from  them  as  experts,  then  the  opinions 
of  witnesses  are  not  competent,  and  such  evidence  should  only  be  received  in 
case  of  necessity.3  A  question  which  elicits  a  reply  based  on  a  mere  arith- 
metical calculation  is  not  objectionable  as  calling  for  expert  testimony.4 

If  the  relation  of  facts  and  their  probable  results  can  determined  with- 
out special  skill  or  study,  the  facts  must  go  to  the  jury,  who  will  be  left  to 
•draw  their  own  conclusions  and  to  form  their  own  opinions.6  If  the  inquiry 
relates  to  a  subject  which  does  not  require  peculiar  habits  of  study  in  order 
to  enable  a  man  to  understand  it,  the  opinion  of  skilled  witnesses  is  not 
admissible.6  The  true  test  is  not  whether  the  subject-matter  is  common  or 
uncommon,  or  whether  many  persons  or  a  few  have  some  knowledge  of  it, 
but  whether  the  witnesses  offered  as  experts  have  any  peculiar  knowledge  or 
experience,  not  common  to  the  world,  which  renders  their  opinions  founded 
on  such  knowledge  any  aid  to  the  court  or  jury  in  determining  the  ques- 
tions at  issue. 

285,  Some  Questions  Held  Not  to  Require  Experts  to  Determine. — It 
has  been  held  that  a  question  "whether,  under  circumstances  proven,  it  was 
a  proper  time  to  burn  brush,"  was  not  a  question  requiring  the  assistance  of 

1  Jones  v.  Tucker,  41  N.  H.  546.  App,),  41  N.  E.  Rep.  78. 

2Furgeson   v.    Habbell,    97   N.    Y.    507  5  Bel  air  v  C.  &  N:  W.  R.  Co..  43  la.  662; 

[1884].  Van  Wyclen  v.  City  of  B.,  118  N.  Y.  424 

3  Staff  ords  v.  City  of  Oskaloosa,64Ia.  251  [1890]. 

[1885].     Overby  v.  Chesapeake  &  O.  Ry.          6  Overby  v.  Chesapeake  &  O.  Ry.  Co., 
Co.  (W.  Va.),  16  S.  E.  Rep.  813.  (W.  Va.),  16  8.  E.  Rep.  813. 

4  Witmark  v.  Manhattan  Ry.  Co.  (N.  Y. 


§  285.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  283 

experts/  even  though  the  witness  offered  had  many  years  of  experience  in 
clearing  land  by  fire,  and  had  observed  the  effect  of  wind  on  fires,  in  the  local- 
ity in  question,  and  had  visited  the  land  and  made  a  plan  of  it.  On  the 
same  ground  opinion  evidence  has  been  rejected  as  to  whether  a  horse  should 
have  been  tied,2  whether  stairs  were  located  in  a  safe  place  in  a  building,3  as 
to  the  effect  of  water  in  disintegrating  mortar  of  a  wall,4  as  to  the  value  of 
real  estate,5  whether  a  survey  was  actually  located  on  the  ground  or  was 
made  in  the  office  from  plats,6  and  whether  wood  was,  or  was  not,  rotten.7 
Generally  questions  of  value,  as  of  a  horse  or  land,  do  not  require  expert 
knowledge.  Witnesses  who  are  not  architects,  builders,  or  contractors  may 
be  allowed  to  state  their  opinions  as  to  the  worth  of  a  building  from  a  gen- 
eral knowledge  of  it  without  being  able  to  estimate  the  value  of  any  of  the 
materials  entering  into  its  construction.8 

It  has  been  held  not  to  require  an  expert  to  prove  that  a  wall  might  have 
cracked  as  a  result  of  defects  in  the  wall  and  foundations  to  show  that  the 
wall  was  defective; '  whether  boards  piled  in  a  certain  manner  will  protect 
a  cargo  of  perishable  freight; 10  if  a  certain  arrangement  of  machinery  is 
dangerous;  n  as  to  the  safety  and  fitness  of  a  belt-fastening  when  a  piece  of 
the  belt  and  the  fastenings  are  before  the  jury; la  as  to  how  much  limestone 
is  beneath  a  railroad  and  its  value  per  ton;13  as  to  what  hard-pan  is  and 
whether  any  was  found;14  as  to  how  much  a  man  can  improve  his  hand- 
writing in  a  short  time.15  In  determining  the  explosive  character  of  dust  in 
a  bin,  a  chemist,  not  shown  to  have  had  any  experience  with  the  same  kind 
of  dust  outside  of  his  laboratory,  is  not  competent  to  testify  that,  if  fire 
came  in  contact  with  it,  an  explosion  would  occur.16 

Witnesses  'cannot  give  any  opinions  as  to  the  legal  effect  of  documents 
or  events,17  nor  will  their  opinion  be  received  as  to  the  amount  of  damages 
suffered  in  an  action  for  damages;18  nor  as  to  whether  a  certain  ailment 
would  bring  to  a  man  the  knowledge  that  he  was  not  in  perfect  health.19 

1  Furseson  v.  Hubbell,  97  N.  Y.  507.  E.  Rep.  952  [1887]. 

2  Stone  fl.  Bishop   (Vt.),    22  Rept'r.  319  H  Freeburg  v.    St.    Paul    Plow    Works 
[1886].  (Minn.),  50  N.  W.  Rep.  102G;  Kaufman  •». 

3  Underwood  v.  Waldron,    33  Mich.  232  Maier  (Cal.),  29  Pac.  Rep   481. 

[1876].  12  Harley  v.  Buffalo  0.  Maiifg.  Co.  (N. 

4Naughton  ®.  Stagg,  4  Mo.    App.    271  Y.  App.),  36  N.  E.  Rep.  813. 

1 1877].  l9  Reading  &  P.  R.  Co.  v.  BaUhaser  (Pa.), 

5  Schwander  v.  Birge,  46  Hun  66.  '13  Atl.  Rep.  294  [1888]. 

6  Reast  v.  Donald  (Tex.),  19  S.  W.  Rep.  u  Currier  v.  B.  &  M.  R.   R. ,  34  N.  II. 
795.  498. 

1  Reynolds  v.   Van   Beuren,    31  N.   Y.          1S  McKeone  v.   Barnes,    108  Mass.    344 

Supp.  827.  [1871]. 

8  Springfield  Fire  &  Marine  Ins.  Co.  0.  16  Shufeldt  v.  Searing.  59  111.  App.  341. 
Payne  (Kan.  Sup.),  46  Pac.  Rep.  315;  but          "  Thompson  «.  Brannin  (Ky.),  21  S.  W. 
see  Little  Rock,  etc.,  Ry.  Co.   t>.  Alister  Rep.  1057. 

(Ark.),  34  S.  W.  Rep.  82  ;   and  Joske  v.  18  Tingley  «.  City  of  Providence,  S  R.  T. 

Pleasants  (Tex.  Civ.  App.),  39  S.  W.  Rep.  493;  affirmed,  Brown  v.  Providence  R.  Co., 

586  [1897].  12  R.  I.  238  [1879]. 

9  Turner  «.  Haar  (Mo.),  21  S.  W.  Rep.  I9  Mut.  L.  Ins.  Co.  of  N.  Y.  «.  Simpson 
737.  (Tex.),  28  S.  W.  Rep.  837. 

10  Sch winger  v.  R-iymond  (N.  Y.),  11  N. 


284        ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  286.. 

286.  Expert  Cannot  Determine  Questions  which  the  Jury  are  to  Decide. 

— The  opinion  of  witnesses  upon  the  precise  questions  the  jury  is  to  deter- 
mine is  competent  only  when  the  nature  of  the  case  is  such  that  facts  can- 
not be  stated  or  described  to  the  jury  in  such  a  manner  as  to  enable  them. 
"  to  form  an  accurate  judgment  thereon  and  no  better  evidence  than  such 
opinions  is  attainable.1  The  object  of  all  questions  to  experts  should  be  to 
obtain  their  opinions  as  to  the  matter  of  skill  or  science  which  is  in  con- 
troversy, and  at  the  same  time  to  exclude  their  opinions  as  to  the  effect  of 
the  evidence  in  establishing  controverted  facts.  Questions  that  require  the 
witness  to  draw  conclusions  of  fact  should  be  excluded.8  Opinions  cannot 
be  asked  upon  facts  or  questions  that  are  to  be  determined  by  the  judge  or 
jury,  but  experts  may  give  scientific  opinions,  under  an  assumption  of  facts 
similar  to  or  identical  with  those  presented  in  the  case.3  Such  questions 
are  termed  hypothetical,  the  witness  being  asked  if  certain  facts  testified  to 
are  true,  if  he  can  form  an  opinion,  and  what  his  opinion  is.3  The  opinion 
of  witnesses  cannot  be  asked  directly  upon  the  circumstances  of  the  case 
being  tried,  but  hypothetical  cases  very  similar  may  be  described  and  the 
opinion  of  the  expert  asked  upon  such  hypothetical  case.4  So  when  the 
question  to  be  determined  was  whether  the  state  or  its  employees  were 
negligent  in  making  changes  in  a  bridge,  a  question  to  the  person  who  built 
it  whether  he  "left  the  bridge,  in  his  judgment,  safe  for  the  ordinary  uses 
of  a  highway  bridge/'  was  held  inadmissible,  as  he  was  thereby  permitted 
to  determine  the  question  which  was  at  issue  and  to  be  decided  by  the 
board  (jury).  And  where  the  negligence  of  the  party  injured  by  the  fall  of 
the  bridge  was  at  issue,  it  was  held  improper  to  admit  the  testimony  of  an 
engineer  that  the  load  was  excessive  and  that  the  stones  were  negligently 
united  and  moved  over  the  bridge,  though  it  would  have  been  proper  to  have 
admitted  him  to  testify  to  the  supporting  power  of  the  bridge  or  any  one  of  its 
panels  or  any  one  of  its  stringers.5  So  where  a  scaffold  has  given  way,  a  witness 
should  not  be  allowed  to  testify  as  to  whether,  in  his  opinion,  the  scaffold  was 
"  put  up  right," 6  though  he  may,  as  an  expert,  show  the  effect  of  a  knot  or 
cross-grain  upon  the  strength  of  a  timber  supporting  the  scaffold.7  Where 
the  question  at  issue  is  the  faulty  construction  of  a  railroad,  an  engineer, 
testifying  as  to  the  construction- of  the  track  and  the  probability  of  deposits 
of  sand  thereon  in  rainy  weather,  could  not,  on  cross-examination,  state 

1  Van  Wycklin  v.  City  of  Brooklyn,  118          4  The  C.  R.  J.  &  P.  R.  R.  Co.  v.  Moffit, 
N.  Y.  424  [1890];  Pacbeco  v.'Judaon  Mfg.      75  111.  524. 

Co.  (Cal.),  45  Pac.   Rep.   833;    Ewing  «.  5  McDonald  v.  State  (N    Y  )  27  N    E 

Goode  (C.  C.),  78  Fed.  Rep.  442.  Rep.  358  [1891];  Eastman  v.  State.  27  N. 

2  Hunt  v.  Lowell  Gas  Lt.  Co.,  8  Allen  E.  Rep.  358  ;  Hughes  v.  Muscatine  Co  ,  44 
169;  B.  &  L.  Tpke.  Co.  v.  Cassell,  66  Md.  Iowa  672. 

419  [1886];  Butler  v.  Chicago,  B.  &  Q.  R.  6  Mauer  v.  Ferguson,   17  N.  Y.  Supp. 

Co.,  54  N.  W.  Rep.  208;  Yeaw  v.  Williams  349. 

<R.  L),  23  Atl.  Rep,  33  [1892];  Mauer  v.  7  Boettger  «.  Scherpe  &  K.   A.  I.  Co, 

Ferguson,  17  N.  Y.  Supp.  349.  (Mo.),  27  S.  W.  Rep.  466. 

3  Rogers'  Expert  Testimony  39. 


§  287.]          ENGINEER'S  AND  ARCHITECTS  EMPLOYMENT.  285 

that  the  engineers  on  the  road  Were  all  aware  of  that  fact,  this  being  a  mere 
inference.1 

287.  Hypothetical  Questions  may  be  Asked  of  an  Expert  Witness. — The 
hypothetical  question  must  not  call  for  an  inference  which  is  within  the 
;province  of  the  jury  to  draw.8  The  witness  should  not  be  called  on  for  his 
^opinion  on  disputed  questions  of  fact,  or  as  to  the  credibility  of  any  of  the 
witnesses.3  A  witness  is  not  to  be  asked  if  he  believes  another  told  the 
truth.  An  opinion  is  worth  nothing  as  against  absolute  knowledge,  fact, 
or  law,  and  the  expert  should  furnish  the  facts  on  which  his  opinion  is 
founded.  In  asking  questions,  the  facts  should  be  clearly  stated,  and  the 
>question  should  be  clearly  within  the  expert's  special  knowledge.  If  ques- 
tion is  clearly  within  expert's  special  knowledge,  you  can  sometimes  ask  the 
very  point  which  is  to  be  decided.  The  facts  assumed  need  not  have  been 
proved,  nor  can  the  question  be  objected  to  on  the  ground  that  the  facts 
assumed  are  not  true.4  The  testimony  offered  should,  however,  establish 
every  fact  embraced  in  a  hypothetical  question,  or  it  may  be  objected  to 
and  the  jury  be  instructed  to  disregard  that  part  of  the  evidence. 

It  is  error  to  receive  answers  of  expert  witnesses  to  hypothetical  ques- 
tions which  assume  the  existence  of  facts  of  which  no  evidence  is  offered; 5 
but  any  facts  may  be  assumed  which  the  evidence  tends  to  establish.6  If 
the  engineer  has  heard  or  read  the  evidence,  or  is  familiar  with  the  facts  of 
the  case,  he  may  be  asked  his  opinion  on  the  assumption  that  they  are  true. 
If  the  facts  are  not  disputed,  the  question  should  include  them  all.  The 
facts  upon  which  an  opinion  is  based  must  always  be  laid  before  the  court 
and  jury.  This  must  be  done  in  order  that  the  jury  may  judge  for  them- 
selves, and  for  the  further  reason  that  other  experts  may  be  called  to  con- 
trovert the  opinion.7  It  is  erroneous  to  permit  a  witness  to  be  asked  to 
state  his  opinion,  based  on  his  recollection  of  the  testimony  of  another  wit- 
ness.8 The  assumed  facts  should  be  stated  hypothetically  in  the  ques- 
tion. An  expert  bridge-builder  has  been  properly  allowed  to  give  his 
opinion  as  to  the  sufficiency  of  a  timber  like  unto  one  that  broke  in  a 
staging.' 

Some  courts  have  held  that  such  questions  should  state  all  the  facts,10 
while  others  have  allowed  questions  that  embrace  facts  deducible  from  the 
evidence,11  and  others  have  permitted  questions  that  assume  any  facts  that 

1  Union  Pac.  Ry.  Co.  v.  O'Brien,  16  Sup.  W.  Rep.  542;  Bever  v  Spanker  (la.),  61 

Ct.  Rep.  618;  Darling  v.  Thompson  N.  W.  Rep.  1072;  Neudeck  v.  Grand 

(Mich.),  65  N.  W.  Rep.  754.  Lodge,  1  Mo.  App.  330. 

?  Prentiss  v.  Bates  (Mich.),  50  N.  W.  '  Frankfort  v.  Manhattan  Ry.  Co.,  33  N. 

Rep.  637.  Y.  Supp.  36. 

3  Stoddard    0.     Town    of    Winchester  8  Bedford  Belt  Ry.  Co.  v.  Palmer  (Ind. 
(Mass.),  32  N.  E.  Rep.  948.  App.),  44  N.  E.  Rep.  688. 

4  Deig  v.  Moorhead  (Ind.),  11  N.  E.  Rep.  9  Stanwick  v.   Butler-Ryan  Co.  (Wis.), 
458  [1887].  67  N   W.  Rep.  723. 

5  North  Amer.  Ace.  Ass'n  v.  Woodson  10  Prentiss  •».  Bates  (Mich.),  50  N.  W. 
(C.  C.  A.),  64  Fed.  Rep.  689.  Rep.  637. 

6  Hicks  v.  Citizens'  Ry.  Co.  (Mo.),  27  S.  ll  Peoples  Vanderhof  (Mich.),  39 N.  W. 


286      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  288. 

the  evidence  fairly  tends  to  prove,  though  they  may  not  be  fairly  proved.1 
It  has  been  held  not  necessary  that  the  hypothetical  question  propounded 
to  an  expert  witness  shall  embrace  all  the  facts  as  to  the  particular  subject 
under  investigation.8  If  the  facts  on  which  the  "opinion  is  based  are  dis- 
puted, their  truthfulness  may  be  assumed  hypothetically.8 

It  has  been  held  even  that  a  hypothetical  case  stated  need  contain  only 
such  facts  as  tend  to  support  counsel's  theory  of  the  case.4  Testimony  that 
a  thing  has  been  done  three  or  four  times  a  day  for  a  month  will  support  a 
question  whether  a  certain  result  would  follow  if  a  thing  had  been  done  as 
many  as  one  hundred  times.5  But  an  inquiry  as  to  how  much  water  would 
be  thrown  from  a  certain  opening,  "  under  a  pressure  such  as  was  on  the- 
pumps,"  was  denied,  when  there  was  no  evidence  as  to  the  amount  of 
pressure.6  Generally,  an  expert  witness  should  not  be  allowed  to  testify  to- 
hypothetical  questions  based  upon  facts  a  part  of  which  only  have  been 
proved.7  The  fact  that  the  names  of  the  parties  to  the  suit  are  mentioned 
in  putting  hypothetical  questions  is  not  objectionable.8 

It  is  safer  to  embody  all  the  particulars  on  which  his  opinion  is  asked, 
though  the  trial  court  may  in  its  discretion  allow  questions  to  be  put  in 
other  form.9  Decisions  are  found  which  hold  that  the  opinion  of  an  expert 
witness  must  be  based  on  proved  or  admitted  facts,  or  upon  such  facts  as- 
are  assumed  to  exist  for  the  purpose  of  a  hypothetical  question,  and  it  is 
not  a  sufficient  objection  to  such  question  that  the  facts  stated  therein  had 
not  been  put  in  evidence,  nor  can  it  be  objected  to  upon  the  ground  that 
the  facts  assumed  are  not  true.10  In  an  action  for  work  and  labor  performed, 
it  is  proper  for  plaintiff  to  put  to  ordinary  witnesses  hypothetical  questions 
in  regard  to  the  value  of  the  services  alleged  to  have  been  performed.11  An 
opinion  may  be  asked  of  a  physician  as  to  what  would  be  the  result  of  a 
disease  in  the  natural  and  ordinary  coarse — to  wit,  that  the  plaintiff  would 
never  be  any  better  and  never  be  able  to  strengthen  his  limbs.12 

288.  Witness  Acquainted  with  Facts  of  Case. — If  the  engineer  has 
personal  acquaintance  with  the  subject-matter,  and  a  knowledge  of  the 

Rep.  28  [18881;  People  v.  Durrant  (Cal.),       M.),  34  Pac.  Rep.  544. 

48  Pac:  Rep.  75  [1897].  8  Lee  v.  Heuman  (Tex.),  32  S.  W.  Rep, 

1  Hall  v.  Rankine  (Iowa),  54  K  W.  Rep.       93. 

217;   Kelly  v    Perrault  (Idaho),  48  Pac.  9  Roreback  v.    PeDna.    Co.   (Conn.),    20 

Rep.  45  [1897].  All.  Rep.  465  [1890] ;  In  re  Miller's  Estate, 

2  Davidson  v.  State  (Ind.  Sup.),  34  N.  26  Pittsb.  Leg.  J.  (N.  S.)  428  ;  Hammer- 
E.  Rep  972.  burg  v.  Met.  St.  Ry.  Co.,  1  Mo.  App.  Rep. 

3  Frankfort  v.  Manhattan  Ry.   Co.,  33  578. 

N.  Y.  Supp.  36.  10  Deig  v.  Morehead  (Ind.),  11  N.  E.  Rep. 

4  Bowen  v.  City  of  Huntington  (W.Va.),  458  [1887]  ;  see  also  Baltimore  &  L.  T.  Co. 
14  S.  E.  Rep.  217.  *>•  Cassell,  66  Md.  419  [1886]. 

5  K.  C.,  M.  &  B.  R.  Co.  v.  Webb  (Ala.),  n  Graves  v.  Pemberton  (Ind.  App.),  29 
11  So.  Rep.  888.        .  N.  E.  Rep.  177. 

6  Vermillion  A.  W.,  etc.,  Co.  v.  Vermil-  12  Stromm  v.  N.  Y.,  L.  E.  &  W.  R.  Co., 96 
lion  (S.  D.),  61  N.  W.  Rep.  802.  N.  Y.-305:  see  Cole  v.  Fall  Brook  C.  Co. 

'  In  re  Mason,    14  N.   Y.   Supp.   434;      (Sup.),  34  N.  Y.  Supp   572. 
semble,  111.  Silver  M.  &  M.  Co.  v.  Roff  (N. 


§  289.]          ENGINEERS  AND  ARCHITECTS  EMPLOYMENT.  287 

facts  and  circumstances  surrounding  it,  he  may  be  permitted  to  give  his 
opinion  directly  without  any  hypothesis,  or  if  there  is  no  dispute  as  to  the 
facts,  the  question  may  be  direct,  upon  the  facts  of  the  case.  The  facts 
must  be  stated,  for  even  though  the  witness  may  have  read  testimony  and 
all  the  facts  he  cannot  be  asked  for  his  opinion.  There  must  be  a  specific 
question  covering  the  facts  or  the  assumed  facts.1 

Thus  an  engineer  who  has  had  charge  of  the  erection  of  a  wall  may 
testify  whether  or  not  it  was  properly  and  compactly  constructed.3  If  he 
has  inspected  and  made  a  proper  investigation  of  a  bridge  he  may  give  his- 
opinion  whether  the  abutments  of  the  bridge  were  skillfully  and  properly 
placed.3  He  may  testify  as  to  the  effect  of  decay  of  the  bridge  timbers 
upon  the  bridge  itself,  and  as  to  the  ordinary  life  of  such  timbers  as  were 
used  in  the  bridge,4  and  as  to  whether  in  his  opinion  the  decay  set  in  before- 
or  at  the  time  of  the  accident,  when  the  inspection  was  made  a  year 
thereafter,  and  as  to  whether  a  superintendent  was  qualified.5  If  the  evi- 
dence be  conflicting,  i.  e.,  if  the  facts  are  not  admitted,  then  questions  must 
be  put  hypothetically. 

In  engineering  cases,  and  to  engineering  experts,  questions  may  usually 
be  put  directly.  Generally,  the  circumstances  are  such  that  an  engineer  may 
visit  the  scene  of  the  difficulty  and  investigate  the  facts  for  himself;  *  but  a 
hypothetical  question  put  to  an  expert  witness,  calling  upon  him  to  take 
into  account  his  own  personal  knowledge  of  facts,  is  not  permissible.7  If 
he  has  inspected  the  work  or  the  wreck,  and  has  qualified  himself  by  stating 
the  facts  upon  which  his  opinion  is  based,  his  testimony  may  be  admitted 
even  when  he  is  not  an  expert.8 

289.  Weight  and  Value  of  an  Expert's  Testimony  is  Determined  by 
Jury. — Although  it  is  the  office  of  the  judge  to  determine  who  are  experts, 
what  are  proper  questions,  and  how  they  be  put,  yet  the  truthfulness, 
weight,  and  importance  of  his  testimony  is  decided  by  the  jury.  It  is  for 
them  to  determine  from  the  facts,  the  conduct  and  behavior  of  the  witness,, 
how  much  to  believe  and  what  to  believe.9  The  judgments  of  witnesses 
are  not  as  a  matter  of  law  to  be  accepted  by  the  jury  in  the  place  of  their 
own  decisions.  Juries  are  not  precluded  from  exercising  their  own  ideas 

1  In  re  Snelling's  Will  '(N.  Y.),  32  N.  E.  iels  (Tex.),   28  S.  W.   Rep.   548,    failure 

Rep.  1006.  of  a  bridge  ;  accord,  Denver.  T.  &  Ft.  W. 

3  Pullman  v.  Corning.  9  N.  Y.  93.  Ry.  Co.  v.  Pulaski  I.  D.   Co.  (Colo.),  35 

3  Conrad  v.  Trustees,  16  N.  Y.  158  [18571.  Pac.    Rep.    910,     bridge    abutments    ob- 

4  Morgan  v.  Fremont  Co  (la.),  61  N.W.  strutting  an  irrigation  ditch  ;  Helfenstein 
Rep   231.  v.  Mednrt  (Mo.  Sup.),  36  S.  W.  Rep.   863,. 

5  Washington   C.   &  A.   T'p'ke  v.    Case  speed  of  a  bursted   grindstone ;   Sneda  v. 
(Md.)f  30  All.  Ren.  571;  Buckalew  v.  Ten-  Libera  (Minn.),  68  N.  W.  Rep.  36,  thick- 
nessee,  C.,  I.  &  R.  Co.  (Ala.).  20  So.  Rep.  ness  and  strength  of  a  cistern  wall  ;  Egarr 
606.  v.  Dry  Dock,  etc.,  R.  Co.  (Sup.),  42  N.  Y. 

6  O'Keefe  v.   St.    Francis'    Church,    59  Supp.  188,  time  to  corrode  a  boiler. 
Conn.  551  [1890].  9  Spring  Co.    v.    Edgar,  99  U.    S.   645 

1  Bramble  v.  Hunt,  22  N.  Y.  Supp.  842.       [1878]. 
*  Galveston,  H.  &  S.  A.  Ry.  Co.  «.  Dan- 


288    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.     [§  290. 

.and  knowledge  upon  the  subject;  it  is  their  province  to  weigh  the  opinions 
offered,  the  time  devoted,  and  other  circumstances,  and  to  apply  to  them 
their  own  experience  and  knowledge  of  the  character  of  such  questions.1 
The  opinions  of  experts  cannot  be  substituted  for  the  common-sense  and 
judgment  of  the  jury;  the  purpose  of  their  own  introduction  is  to  supple- 
ment the  general  knowledge  and  experience  of  the  jury.2  It  is  therefore 
error  for  a  judge  to  charge  a  jury  that  expert  testimony  should  be  met  by 
other  expert  testimony,  and  if  it  is  not,  it  (the  jury)  should  regard  their 
opinion  as  correct.  Such  evidence  is  to  be  weighed  like  other  testimony 
by  the  jury,  and  a  defendant  to  a  suit  is  not  bound  to  employ  rebutting 
experts.3 

290.  Expert  Witness  must  Not  Try  to  Determine  Questions  whose  Deter- 
mination Is  for  the  Court  or  Jury.— The  construction  of  written  instru- 
ments is  for  the  court  or  jury,  and  not  for  the  surveyor  or  engineer  (wit- 
ness); the  fact  that  a  surveyor  has  scaled  the  map  by  which  land  is 
described,  and  found  it  incorrect,  cannot  be  admitted  to  prove  title  to  land 
in  dispute.4  Nor  can  the  opinion  of  other  witnesses  be  admitted  to  show  the 
true  meaning  and  location  of  boundary  lines  in  dispute.0  Or,  in  the  lan- 
guage of  the  court,  "  Experts  cannot  be  called  to  give  their  opinions  on  sub- 
jects of  this  character.  Witnesses  are  competent  to  show  lines  and  measure- 
ments, but  the  construction  of  written  instruments  is  for  the  court  alone."  8 
Although  a  surveyor  may  in  some  instances  be  called  upon  to  explain  or 
account  for  a  mistake  in  a  survey,7  or  give  his  opinion  as  to  how  he  would 
locate  a  tract  similar  to  the  one  in  controversy,8  yet  he  may  not  give  his  own 
construction  of  the  description  and  survey,  nor  determine  what  are  the  con- 
trolling calls  of  the  deed.9  Though  his  evidence  may  be  admitted  to  aid  in 
locating  the  land  by  the  description  in  the  deed,10  he  cannot  determine  the 
location  of  a  tract  according  to  a  description  when  it  is  a  duty  devolving 
upon  a  jury.11  He  may  not  testify  that  there  was  no  conflict,  as  that  ques- 
tion is  to  be  determined  by  the  jury."  A  question  whether  there  were  any 
marks  to  show  that  any  persons,  other  than  those  mentioned,  got  any  of  the 
land,  when  the  surveyor  has,  as  an  expert,  fully  explained  a  plat,  and  all 
that  he  saw  or  could  find  in  regard  to  the  lines  therein,  calls  for  witness's 
opinion  as  to  facts,  and  is  leading.18  He  is  a  qualified  witness  to  test  and 

1  Head  10.  Hargrave,  105  U.  S.  45.  9Whittesley    v.   Kellogg,    28  Mo.    404; 

*  Leittensdorfer  v.  Kind's  Admx.,  7  Colo.  Tate  v.  Fratt  (Cal.),  44  Pac  Rep.  1061. 

436  [1884].  i»Cornwell    v.    Cornwall,   91    111.   414. 

3  People  0.  Vanderhoof  (Mich.),   39  N.  [1879];  affirming  Colcord  v.  Alexander,  67 
W.  Rep.   28  [1888] ;  The  Conqueror,  17  111.    584;  Ormsby  v.  Ihrasen,  34  Pa.    St. 
Sup.  Ct.  Rep.  510;  Ewing  «.  Goode  (C.  462. 

•C.),  78  Fed.  Rep.  442.  "  Schultz  v.  Lindell,30Mo.  310;  Blumen- 

4  Twogood  v.  Hoyt,  42  Mich.  609.  thai  v.   Roll,    24  Mo.    113;   Randolph  v. 

5  Public  School  v.  Risley's  Heirs,  40  Mo.       Adams,  2  W.  Va.  519. 

556.  1J  Bugbee  Land  Co.  ».  Brents  (Tex.  Civ. 

6  Norment  v.   Fastnaught,  1  McArthur      App.),  31  S.  W.  Rep.  695. 

515.  ls  Rapley  v.  Klugh  (S.  C.),  18  S.  E.  Rep. 

7  Forbes  v.  Caruthers,  3  Yeates  527.  680. 

8  Farr  v.  Swan,  2  Pa.  St.  245. 


§  291.]          ENGINEERS  AND  ARCHITECT'S  EMPLOYMENT.  289 

apply  data  on  a  map,  in  determining  their  sufficiency  as  guides  by  which  to 
ascertain  a  location.1  The  interpretation  of  a  contract  is  for  the  court, 
though  it  contains  technical  terms,  and  it  is  error  to  allow  an  expert  wit- 
ness to  state  how  he  understands  it;  the  expert  may  explain  the  meaning 
of  such  terms.3 

If  skilled  in  masoii  work,  his  testimony  is  admissible  to  show  the  mean- 
ing of  the  terms  "  mason  work  "  as  used  in  a  contract  for  the  construction 
of  water-works,  and  whether  they  include  the  laying  of  certain  pipes;3  and 
if  a  builder,  he  may  testify  as  to  the  meaning  among  mechanics  of  "  smoke- 
stack." 4 

291.  Qualifications  of  an  Expert — Who  may  Be  an  Expert  Witness. — 
After  having  determined  that  the  question  is  one  requiring  expert  testi- 
mony, it  next  becomes  necessary  to  inquire  if  the  witness  offered  is  quali- 
fied. To  render  an  opinion  admissible,  it  must  first  be  shown  that  the  wit- 
ness possesses  superior  skill  and  scientific  knowledge  in  relation  to  the 
question.  This  must  be  done  before  the  opinion  can  be  asked.5  An  expert 
has  been  defined  as  nothing  more  than  a  man  of  experience  in  the  particular 
vocation  to  which  the  inquiry  relates,  or  as  one  having  peculiar  knowledge 
or  skill  in  reference  to  the  subject-matter  of  inquiry,  or  simply  as  a  person 
instructed  by  experience.6  They  have  been  defined  as  "  men  of  science,"  T 
"persons  professionally8  acquainted  with  the  sciences  or  practice,"  9  "  con- 
versant with  the  subject-matter," 10  "  persons  of  skill,"  "  "experienced  per- 
sons," ia  possessed  of  some  particular  science  or  skill  respecting  the  matter  in 
question.13 

No  precise  knowledge  is  required.  It  is  enough  if  the  witness  shows  an 
acquaintance  with  the  subject  as  to  qualify  him  to  give  an  opinion.1*  He  is 
not  incompetent  to  testify  because  he  has  acquired  his  knowledge  from 
books,  but  he  must  have  made  the  subject  of  inquiry  a  professional  study 
and  a  calling.  It  cannot  be  understood  that  a  lawyer  may,  by  a  few  weeks' 
study  of  engineering  books,  qualify  himself  to  testify  as  an  expert  engineer, 
or  vice  versa.16  A  witness  who  testifies  that  he  is  a  mechanical  engineer, 
that  he  graduated  several  years  before  from  a  university,  and  since  then  has 
been  engaged  in  civil  and  mechanical  engineering;  that  he  has  given  some 
study  to  the  investigation  of  the  strength  of  grindstones,  and  the  safe  rate 
of  speed  at  which  such  stones  of  various  size  might  be  run,  and  that  he 

1  Grand  R    L  &  D.  R  Co.  v.  Chesebro  '  Folkes  t>.  Chadd,  3  Doug.  157. 

(MiclO,  42  N.  W.  Rep.  66  [1889J.  8  Jones  v.  Tucker,  41  N.  H.  546. 

8  Cargill  v.  Thompson  (Minn.),  59  K  W.  9  Strickland  on  Evidence. 

Ren  638  10  Best  on  Evidence. 

3  Elgin  «.  Joslyn  (111.),  26  N.  E.  Rep.  »  Rochester  v.  Chester,  3  N.  H.  349,  365. 

1090  [1891].  12  Peterborough  fl.  Jaffrey,  6  N.  H.  462, 

4SkeltonV  Fenton  Elec.  L.  &  P.  Co.  464. 

(Mich.),  58  N.  W.  Rep.  609  13  Beard  v.  Kirk,  11  N.  H.  397. 

8  Pa"-e  v  Parker  40  N.  H.  59  [I860].  u  Terre  Haute  «.  Hudnutt,  112  Ind.  542. 

6  Louisville,  E  ,  &  St.  L.  R.  Co.  v  Don-  15  Rogers'    Expert  Test.    28;  People  v. 

iicgun   111  Ind.  179;  58  Ala.  290;  92  Ind.  Thackery  (Mich.),  66  N.  W.  Rep.  562. 
464;  102  Ind.  138. 


290     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  291. 

thinks  he  can  state  what  is  a  safe  rate  of  speed,  is  qualified  to  testify  as  an 
expert  in  regard  thereto.1  Mere  opportunities  for  observation  are  not  suf- 
ficient; thus  the  opinion  of  a  civil  engineer  on  the  sufficiency  of  a  highway 
was  held  incompetent,2  while  the  opinions  of  professional  road  contractors 
have  been  held  to  be  competent.* 

An  editor  of  a  stock  journal  was  rejected  as  an  expert  on  diseases  of 
sheep,  having  had  no  practical  experience  or  veterinary  practice  ; 4  but  per- 
sonal experience  with  and  care  of  stock  will  qualify  a  witness.6  A  professor  of 
veterinary  medicince,  employed  for  many  years  by  the  Department  of  Agri- 
culture in  the  investigation  of  diseases  of  animals,  is  competent  to  testify 
as  to  the  nature  and  symptoms  of  Texas  cattle  fever.  He  may  state  what 
districts  of  Texas  are  infected  with  the  cattle  fever,  though  he  has  never 
visited  those  districts,  the  knowledge  gained  by  him  in  the  correspondence 
of  the  department,  and  in  the  investigation  of  such  diseases  as  to  the 
places  of  their  origin  or  prevalence,  not  being  properly  hearsay.6 

A  druggist  who  did  not  make  an  analysis  of  a  compound,  and  who 
was  unable  to  do  so,  and  only  judged  its  character  by  taste  and  smell,  can- 
not testify  as  to  a  preparation,  and  that  it  contained  alcohol ; 7  but  a  miller 
of  tweny  years'  experience,  accustomed  to  analyze  flour  by  a  process  used 
more  or  less  by  others,  may  testify  as  an  expert  as  to  the  component  parts  of 
of  flour,  though  he  is  not  a  practical  chemist.6  The  objection  that  expert 
witnesses  based  their  opinions  of  a  stated  question  upon  a  crude  and  insuf- 
ficient analysis  does  not  affect  the  admissibility  of  the  evidence,  but  its  suf- 
ficiency only." 

The  evidence  offered  through  an  expert  must  be  confined  to  the  subject- 
matter  in  which  he  is  skilled,  experienced,  or  learned.  An  engineer  cannot 
testify  as  an  expert  in  medicine,  nor  a  painter  in  regard  to  the  framing  of  a 
building,  or  its  construction.10  Nor  can  a  brick  and  stone  mason  give  an 
opinion  as  to  what  caused  the  floors  and  walls  of  a  building  to  collapse.11 
It  has  therefore  been  held  that  a  witness  familiar  with  earth  dams  could  not 
testify  as  to  a  dam  built  of  wood,18  and  that  the  apparent  safety  of  an 
embankment  cannot  be  judged  by  one  who  has  merely  seen  it  collapse.18 

One  who  has  been  a  civil  and  hydraulic  engineer  for  several  years  is  qualified 

1  Helfenstein  v.  Medart  (Mo.  Sup.),  36  S.  7  Dane  v.  State  (Tex.),  35  S.  W.  Rep. 
W.  Rep.  863.  661. 

2  Benedict  v.  City,  44  Wis.  495.  8  Davis  v.  Mills  (Mass.),  40  N.  E.  Rep. 

3  Taylor  v.  Town  of  Monroe,  43  Conn.  852. 

43;   accord,  Bergen  Neck  Ry.  Co.  v.  Pt.          9  State  v.  Martin  (S.C.),  25  S.  E.  Rep.  113. 
Breeze  F.  &  J.  Co.  (N.  J.),  30  Atl.  Rep.          10Kilbourne  v.  Jennings,  38  la.  533 
584;  Wheeler  &  W.  Mfg.  Co.  v.  Buckout          »  Peteler    Portable   Ry.    Mfg.    Co.    v. 

(N.  J.  Sup.).  36  Atl.  Rep.  772.  Northwestern  A.  Mfg.  Co.  (Minn.),  61  N. 

4  Rogers'  Expert  Testimony  33.  W.  Rep.  1024. 

5  Pears-m  v.  Zehr  (111.),  29  N.  E.  Rep.          12  Weidekind  «.  Twolume  Co.  W.  Co 
854;  semble,  State  v.  Dixon  (La.),  16  So.  (Cal.),  25  Pac.  Rep.  311. 

Rep.  589.  13  Central  R.  Bkg.  Co.  •».  Kent  (Ga.),  10 

6  Grayson  v.  Lynch,  16  Sup.   Ct.  Rep.      S.  E.  Rep.  965. 
1064. 


§  291.]          ENGINEERS  AND  ARCHITECT'S  EMPLOYMENT.  291 

to  testify  as  an  expert  in  matters  touching  civil  and  hydraulic  engineering.1 
An  engineer  who  examined  a  ditch  two  months  after  it  was  abandoned  by 
the  contractors,  and  found  the  original  stakes,  showing  the  depth  of  the1 
ditch,  and  was  able  to  verify  his  estimate  from  such  stakes,  is  competent 
to  testify  to  the  cost  of  completing  the  ditch.8  His  testimony  has  been 
admitted  to  prove  that  stakes  were  surveyors'  stakes;  3  that  piles  of  stones 
and  marks  upon  trees  were  monuments  of  a  boundary;4  that  a  particular 
lino  was  marked  by  government  surveyors.5  They  have  been  permitted  to 
give,  results  of  surveys  made,  and  the  relative  position  of  the  line  to  exist- 
ing monuments,  fences,  and  buildings  ;  6  their  opinions  have  been  allowed: 
upon  the  location  of  boundary  lines  which  had  not  previously  been  officially' 
located.7  These,  however,  cannot  be  allowed  if  the  true  location  of  the1 
boundary  is  a  question  upon  which  the  jury  is  to  pass.*  A  surveyor  may 
testify  in  such  a  case  that  in  his  opinion  certain  marks  upon  a  tree  were 
corner  or  line  marks,  but  he  may  not  testify  to  his  opinion  that  a  particular 
tree  is  the  corner  of  a  grant  in  question.8 

Engineers  experienced  in  construction  are  frequently  called,  and  cases 
are  frequent  where  they  have  given  opinions  in  that  branch  of  engineering. 
Examples  as  to  the  time  required  to  construct  and  complete  a  railroad,9  to- 
show  what  is  a  reasonable  time  in  which  a  contract  shall  be  performed;  10  as'. 
to  the  value  of  the  work  done,11  or  the  cost  of  construction  of  a  house;  12  as  to* 
whether  abridge  was  skillfully  constructed  with  reference  to  a  creek;  13  as  ta 
the  proper  size  of  the  base  of  certain  columns;  u  to  show  the  strength  of 
materials,  and  to  show  that  a  structure  was  not  properly  constructed  to  sus- 
tain the  weight  to  which  it  was  subjected  ;  5  to  establish  that  a  crack  in  iron 
machinery  could  have  been  ascertained  in  certain  ways;  18  as  a  defect  in  a  car- 
wheel  by  the  hammer  test;  !7  to  prove  the  faulty  construction  of  a  dock;  18  that 
in  order  properly  to  carry  out  a  construction  contract,  certain  methods  of  ' 
erection  and  certain  work  done  were  necessary;  19  and  what  the  rule  is  as  to^ 
constructive  measurements.20 


1  Egger  v.  Rhodes  (Gal.),  37  Pac.  Rep.  I2  Woodruff  v.  Imp.  F.  Ins.  Co., 
1037;  and  see  5  B.  &  A.  64.  133. 

2  McDonald  v.  Dodge  County  (Neb.),  60  13  Bellinger  v.  N.  Y.  Central  R.  CcH,»23; 
N.  W.  Rep.  366.  N.  Y.  42. 

3  McGrann  v.  Hamilton  (Conn.),  19  Atl.  14  Linen  v.  Paris  L.  &  G.  E.  Co.  (Tex.); 
Rep.  376  [1890].  15  S.  W.  Rep.  208  [1891]. 

4  Davis  v.  Mason,  4  Pick.  156.  15  Callau  v.  Bull  (Gal.),  45  Pac.  Rep.  1017. 

5  Barrou  «.  Cobleigh,  11  N.  H.  557;  Wai-  16  Pacheco  v.  Judson  Mfg.    Co,   (jOal.), 
lace  v.  Goodall,  18  N.  H.  439;  24  Ala.  390.  45  Pac.  Rep.  833. 

6  Messeru.  Regunter,  32  la.  312.  »  Pittsburgh,  etc.,  Ry.  Co.  v.  Sheppard 

7  Kinsley  v.  Crane,  34  Pa.  St.  146.  (Ohio  Sup.),  46  N.  E.  Rep.  61. 

8  Clegs:  a.  Fields,  7  Jones'  Law  (N.  C.)  37;  1R  Munroe  v.  Godkin  (Mich.),  69  IT.  W. 
Tate  v.  Fratt  (Gal.),  44  Pac.  Rep.  1061.  Rep.  244. 

9L.  E.  &  St.  L.  Ry.  Co.  u.  Donnegan,  19  Haver  0.  Tenney,  38  Iowa  80  [1875]; 

111  Ind  179.  see    also    Hamilton  v.   Railroad    Co.,    36* 

10  Goddard  v.  Crefield  Mills  (C.  C.  A.),  75  Iowa  81. 

Fed.  Rep.  818.  20  Ambler  0.  Phillips  (Pa.),  19  Atl.  Repv 

11  Crawford  v.  Wolfe,  29  Iowa  567.  717. 

*  See  Sees.  286  and  290,  supra. 


292      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  291. 

Engineers,  architects,  and  surveyors  may  in  general  testify  to  any  opin- 
ions which  belong  peculiarly  to  their  occupation  and  business.1  An  engineer 
who  has  acted  as  such  on  construction  of  a  work  may  testify  to  his  opinion 
whether  it  was  properly  built  at  a  certain  point,  and  whether  it  was  con- 
structed in  the  usual  manner;  and  so  may  a  witness  who,  though  not  a  civil 
engineer,  has  had  experience  in  railroad  construction,  and  is  familiar  with 
the  road;2  and  an  engineer  may  testify  as  to  the  necessary  capacity  of  a 
sewer,3  or  whether  a  cellar  would  be  water-tight  if  built  according  to  specifi- 
cations.4 

The  rules  determining  the  subjects  upon  which  experts  may  testify  and 
the  rules  prescribing  the  qualifications  of  experts  are  matters  of  law;  but 
whether  a  witness  offered  as  an  expert  has  those  qualifications  is  a  question 
of  fact  to  be  decided  by  the  court  at  the  trial.6  The  fact  that  a  witness 
offered  as  a  chemical  expert  had  abandoned  his  studies  as  a  chemist  and 
become  a  druggist  does  not  render  him  incompetent,8  and  the  same  may  be 
said  of  an  engineer  or  architect  who  has  given  up  his  professional  work  for 
teaching  or  writing. 

Practical  mechanics  of  many  years'  experience  may  testify  as  to  the  meas- 
urement of  masonry,7  as  to  the  amount  and  value  of  labor,  based  upon  a 
given  state  of  facts  and  their  personal  knowledge  to  a  certain  extent  of  the 
work  done; 8  that  a  wall  though  a  little  out  of  plumb  is  just  as  valuable  for 
the  purpose  for  which  it  was  built;9  and  blacksmiths  may  testify  as  to  the 
quality  and  condition  of  a  piece  of  iron.10 

If  a  witness  is  not  an  expert  on  the  subject  of  inquiry,  he  cannot  be  per- 
mitted to  give  an  opinion  on  the  subject.  It  is  error  therefore  to  admit  the 
opinions  of  witnesses  as  to  overflow  of  lands  due  to  railroad  embankments, 
unless  such  witnesses  have  peculiar  knowledge  of  such  matters.11  A  civil 
engineer  with  a  long  experience  in  railroad  work,  and  in  the  same  vicinity, 
was  held  a  competent  witness  to  give  an  opinion  as  to  whether  it  was  pos- 
sible for  an  embankment  to  back  water  on  to. certain  lands; ia  as  was  a  resi- 
dent who  for  twenty-six  years  had  been  familiar  with  a  stream  and  knew 
from  observation  what  had  obstructed  or  would  obstruct  its  flow,  though  he 
was  not  an  expert  in  building  embankments,  bridges,  and  culverts; 18  and  a 
witness  having  twenty  years'  experience  in  the  construction  of  railroads  to 

1  Chamberlain  v.  Dunlop  (Sup.),  8  N.  Y.  9  Stiles  v.  Neillsville  M.  Co.  (Wis.),  58 
Supp.  125.  N.  W.  Rep.  411. 

2  St.  L.  &  T.  Ry.  v.  Johnston  (Tex.),  15  10  L.  N.  A.  &  C.  R.  Co.  v.  Berkly  (Ind.), 
S.  W.  Rep.  104  [1891].  35  N.  E.  Rep.  3. 

3  Hession  v.  Wilmington  (Del.),  27  Atl.  n  Gulf  C.  &  S.  F.  Ry.  Co.  •».  Hepner 
Rep.  830.  (Tex.),  18  S.  W.  Rep.  441;  K.  C.  Ft.  S.  & 

4  McNight    Stone    Co.    v.    New    York  M.  R.  Co.  v.  Cook  (Ark.),  21  S.  W.  Rep. 
(Sup.),  43  N.  Y.  Supp.  139.  1066. 

*  Jones  v.  Tucker,  41  N.  H.  546  [I860].          12  St.  L.  I.  M.  &  S.  Ry.  v.  Lyman  (Ark.), 

6  Haas  v.  Green  (Com.  PI.),  27  N.  Y.      22  S.  W.  Rep.  170,  213. 

Supp.  347;  Bears  v.  Copley  10  N.  Y.  93.  13  Ethridge  v.  San  Antonio  Ry.,  etc.,  Co. 

7  Shulte  v.  Hennesy,  40  Iowa  352  [1875].       (Tex.),  39  S.  W.  Rep.  204. 

8  Crawford  v.  Wolf,  29  Iowa  567  [1870]. 


§  291.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  293 

his  credit,  after  describing  the  manner  in  which  the  culvert  was  constructed, 
may  testify  that  it  was  not  properly  constructed.1  A  person  whose  knowl- 
edge of  coal  veins  and  overhead  and  underlying  strata  is  entirely  theoretical 
is  not  competent  to  testify  as  an  expert  as  to  the  cause  of  the  breaking  in  of 
the  roof  of  a  mine  which  he  had  never  examined,  and  of  which  he  had  no 
knowledge  except  from  the  testimony  of  witnesses  in  the  case.2 

Where  a  witness  qualifies  as  an  expert,  and  states  that  certain  indenta- 
tions on  a  drawbar  were  made  by  a  round  instrument,  he  should  be  allowed  to 
state  what,  in  his  opinion,  that  instrument  was.b  An  expert  engineer  may 
give  his  opinion  that  certain  culverts  through  an  embankment  would 
materially  help  in  draining  certain  lands; 4  and  that  from  certain  statements 
given  in  the  testimony  of  another  engineer  there  is  a  certain  quantity  of 
stone  in  a  wall.5 

Evidence  is  admissible  as  to  different  methods  employed  by  the  profes- 
sion, and  as  to  who  are  standard  authors,  and  their  several  modes  of  treat- 
ment; 6  as  to  what  it  was  worth  to  build  a  structure; 7  as  to  the  usual  and 
proper  way  of  removing  paint; 8  as  to  the  construction,  strength,  and  suffi- 
ciency of  a  building; 9  to  prove  that  black  means  white,  in  showing  a  usage 
of  trade; 10  that  "one  ton  "  was  used  to  include  a  pile  or  heap;  "  that  work 
on  a  job  was  completed  as  soon  as  practicable  under  the  circumstances; ia 
and  current  prices  of  materials  may  be  shown  by  schedule  of  established 
prices  in  the  trade.13  The  reasonable  value  of  professional  services  as  those 
of  an  engineer,  architect,  or  physician,  may  be  shown  by  an  expert  in  the 
same  profession.14  The  expert  opinion  cannot  be  based  upon  his  knowledge 
and  acquaintance  of  the  client  or  patient,  or  of  the  latter's  circumstances, 
but  must  be  founded  upon  his  knowledge  of  the  character  of  the  services.14 
The  qualifications  of  such  witness  to  testify  as  to  the  value  of  services  may 
be  tested  by  the  opinions  of  other  experts.15  An  expert  carpenter  who  has 
seen  only  the  outside  of  a  building  may  testify  as  to  its  value,  upon  a  descrip 
tion  of  its  interior.1' 

To  determine  handwriting  an  expert  may  give  his  opinion  that  the  body 

1  Bonner  v.  Mayfield  (Tex.),  18  S.  W.  Holyoke  Mut.  Fire  Ins.  Co.  (Mass.),  33  N. 
Rep.  305.  E.  Rep.  572. 

2  Lineoski  v.  Susquehanna  Coal  Co.  (Pa.  9  Turner  v.  Haar,  (Mo  )  21   S.  W.   Rep. 
Sup.),  27  All.  Rep.  577.  737. 

3  Galveston    H.    &    S.    A.   Ry.    Co.   v.  10  Mitchel  v.  Henry,  15  Ch.  D.  181. 
Brings  (Tex.),  23  8.  W.  Rep  503.  »  Barry  v.  Bennett,  7  Met.  254. 

*  Willite  0.    C..B.    &    K.    C.    R.    Co.  12  Stiles  v.  Neillsville  Mill  Co.  (Wis.),  58 

(Iowa),  55  N.  W.  Rep.  313.  N.  W.  Rep.  411 ;  Chamberlain  v.  Dunlop 

5Moerling   v.    Smith  (Ind.),   34  K   E.  (Sup.),  8  K  Y.  Supp.  125. 

Rep.  675;  see  also  Vulcanite  Paving  Co.  v.  13  Morris  v.  Columbian  Iron  Works  (Md.), 

Ruch  (Pa.),  23  Atl.  Rep.  555.  25  Atl.  Rep.  417. 

6  Broadhead  v.   Wiltse,    35    Iowa    429;  u  Lee  v.  Heuman  (Tex.),  32  S.  W.  Rep. 
citing  also  6  Iowa  380,  386,  and  30  Iowa  93. 

456.  15  Buehler  v.  Reich  (Com.  PI.),  18  N.  Y. 

7  O'Keefe    v.   St.   Francis'    Church,   59      Supp.  114  [1892]. 

Conn.  551  [1890].  16  Pierce  v.  Boston  (Mass.),  41  N.  E.  Rep. 

8  First  Cong.   Church  of   Rockland  v.      227. 


294     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  292. 

and  signature  of  an  instrument  were  written  by  the  same  person,1  but  the 
genuineness  of  a  signature  cannot  be  proved  by  simple  comparison.2  The 
•correctness  of  the  opinion  of  an  expert  on  handwriting  can  usually  be  shown 
by  ocular  demonstration;  it  should  always  be  accompanied  by  such  demon- 
stration.3 

A  court  will  not  allow  an  engineer  who  has  planned  and  superintended 
the  erection  of  a  culvert  to  testify  that  the  plan  of  it  was  a  judicious  and 
proper  one,  or  that  it  was  a  properly  constructed  one,  in  an  action  against 
his  employers  for  damages  resulting  from  the  washing  away  of  the  culvert.4 

A  non-expert  witness  should  not  be  allowed  to  state  that,  if  the  timbers 
of  the  bridge  had  been  larger  and  sound,  the  bridge  would  have  been  suffi- 
cient for  the  uses  of  the  railroad  company,  except  in  extraordinary  rainfalls.5 
Whether  a  certain  kind  of  wood  is  strong  or  weak  is  a  matter  of  fact,  though 
it  requires*  knowledge  of  and  experience  with  such  wood,  and  the  exercise  of 
judgment  on  such  experience,  to  become  aware  of  the  fact.6 

292,  Witness  may  Employ  Practical  Illustrations  and  Experiments. — In 
advancing  his  opinion  the  engineer  is  not  confined  to  the  mere  assertion  of 
,his  opinion.  He  may  give  his  reasons  and  offer  explanations  in  support  of 
them.  This  must  be  done  in  his  examination-in-chief,  and  it  is  important, 
lor  if  the  witness  can  clearly  represent  the  reasons  of  his  conclusions,  they 
are  likely  to  have  much  more  weight  with  a  jury  than  a  mere  naked  opinion 
,of  a  witness,  however  large  his  experience  or  extensive  his  observation.7 

The  engineer  may  employ  almost  any  reasonable  means  to  explain  his 
reasoning  and  deductions,  such  as  blackboards,8  diagrams,9  maps,10  models, 
and  photographs.11  In  testifying  as  to  a  disputed  boundary,  a  surveyor  may  use 
:a diagram  to  illustrate  his  evidence  or  make  it  intelligible  to  the  jury,  although 
the  diagram  was  not  made  by  himself,  and  is  not  shown  to  contain  a  per- 
fectly accurate  description  of  the  lands.  A  county  surveyor  testifying  as  to 
•aline  which  he  has  himself  run,  may  state  that  it  was  run  correctly,  and 
may  state  the  facts  on  which  he  bases  his  opinions  of  its  correctness — as 
that  he  found  the  "corner  stake,"  " bearing-points,"  "  marked  trees,"  etc.12 
When  the  accuracy  of  a  plat  is  verified  by  a  witness  as  correctly  represent- 
ing the  relative  situation  and  location  of  certain  lots  with  reference  to  other 
property,  it  is  not  error  to  allow  such  a  witness,  on  his  examination,  to  use 
the  plat  in  pointing  out  to  the  jury  such  lots,  their  situation  and  location.11 

1  Reese  fl.  Reese,  90  Pa.  St.  89  [1879].  W.  P.  Co.  (Me.  Sup   Ct.),  June  [1886] 

*  Bevan  t>.  Atlanta  Nat.  Bk.  (111.),  31  N.  8  McKay    «.    Lasher,   .121    N.    Y.    477 

E.  Rep.  679;  The  State  v.  Owen,    73  Mo.  [1890]. 

440  [1881].  9  State  v.  Henderson,  29  W.  Va.  147. 

3  In  re  Gordon's  Will,  26  Atl.  Rep.  268.  10  Shook  v.  Pate,50  Ala.  91  [1874];  Cnlu- 

4  Galena  &  C.   U.   R.  Co.  v.  Welch,  24  met  Ry.  v.  Moore  (111.),  15  N.  E.  Rep.  764 
111.  31  [I860].  [1888];   Neff  v.    Cincinnati,    32   Ohio   St. 

5  Galveston  H.  &  S.  A.  Ry.  Co.  v.  Dan-  215. 

•iels  (Tex.),  20  S.W.  Rep.  955.  n  Rippe  v.  C.  D.  &  M.  R.  Co..  23  Minn. 

6  Gerbig  v.  New  York,  L.  E.  &  W.  R.       18  [1876]. 

Co.  (Sup.),  27  N  Y.  Supp   594.  I2  Shook  v.  Pate,  50  Ala.  91  [1874j, 

7  Lewiston  S.  M.  Co.  v.  Audroscoggin 


§  292.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  295 

It  has  been  held  error  to  refuse  to  permit  a  diagram  of  the  place  to  be  taken 
out  by  the  jury,  it  having  been  prepared  by  a  civil  engineer  who  testified  to 
its  correctness  and  it  having  been  admitted  in  evidence.1 

It  is  generally  a  matter  within  the  discretion  of  the  presiding  officer  of 
the  court,  to  what  extent  practical  tests  may  be  employed.  It  may  deter- 
mine whether  persons,  models,  and  things  shall  be  exhibited  in  court  to  the 
jury,  and  the  court  may  properly  refuse  permission  to  bring  into  court  such 
models,  as  for  example,  two  planks  and  a  cross-bar,2  or  a  section  of  a  human 
body  to  show  the  exact  location  of  certain  parts,3  or  a  sample  of  needlework 
by  a  person  who  has  lost  her  capacity  to  do  such  work.4  There  is  no  rule 
requiring  a  person  or  thing  to  be  produced  or  brought  into  court  for  exhibi- 
tion, nor  is  it  necessary  to  account  for  its  non-production.5  The  trial  court 
may  in  its  discretion  permit  the  jury  to  go  from  the  court-room  and  view  the 
premises,6  and  the  court's  refusal  to  permit  such  excursion  is  not  review- 
able  on  appeal.6  Where  counsel  had  knowledge  of  the  fact  that  a  part  of 
the  jury  had  visited  the  place  of  the  accident,  he  cannot,  in  default  of  ob- 
jection at  the  time  of  the  trial,  complain  of  the  misconduct  of  the  jury  on 


Plaster  casts  of  a  person's  mouth  and  the  teeth  supposed  to  fit  them,8 
impressions  of  a  horse's  mouth  in  wax  and  plaster,9  weapons  used  and  clothes 
worn,10  are  instances  recorded.  Courts  have  permitted  chemical  tests  of  the 
ink  with  which  a  paper  has  been  written,11  and  it  has  been  held  an  error  to 
exclude  expert  testimony  showing  the  appearance  of  a  note  under  the 
microscope,  where  the  jurors  could  use  such  microscope  for  themselves;  and 
notwithstanding  a  witness  testified  that  almost  daily  for  five  years  he  had 
used  a  microscope  in  the  examination  of  handwriting,  and  that  one  without 
experience  could  not  so  use  it,  though  he  might  if  he  had  intelligence  and 
judgment  as  to  the  use  of  the  different  object-glasses.12 

Building  materials,  such  as  a  piece  of  a  column  used  by  a  contractor  in 
the  construction  of  a  building,  have  been  admitted  in  evidence  in  an  action 
for  breach  of  contract  on  part  of  owner,  for  not  allowing  the  contractor  to 
complete  the  contract  because  the  columns  used,  were  not  such  as  were 
required  by  the  contract,  nor  is  it  error  to  allow  the  jury  to  take  such  pieces 

1  Western  &  A.  R.  Co.  v.  Stafford  (Ga.),       117  Mass.  122,  spots  of  blood;  Herman  «. 
25  S.  E.  Rep.  656;  accord,  Clegg  *>.  Metro-      State,  41  N".  W.  Rep.  171. 

politan   Ry.    Co.   (Sup.),    37  N.  Y.  Supp.  6  Board  of  Comm'rs  v.  Castetter  (Ind.), 

130.  33  N.  E.  Rep.  986;  see  also  14  Gratt.  448. 

2  Mayor  v.  Pool  (Tenn.),  19  S.  W.  Rep.  7  City  of   Sbelbyville  v.  Brant,  61  111. 
325  [1892].  App.  153. 

3  Knowles  u.  Crampton  (Conn.),  11  All.  8  Commonwealth  v.    Webster,    5  Gush. 
Rep.  593  [1888].  295. 

4  Yountrstown     Bridge    Co.    v.    Barnes  9  Earle  v.  Lefler,  46  Hun  9. 
<Tenn.)  39  S.  W.  Rep.  714.  10  Best's  Evdce.  (Chamb.  Ed.)  198. 

5  Gilraanton  v.  Ham,  38  N.  H.  108;  King  n  In  re  Monroe  Estate,  5  N.  S.  552. 

v.  N.  Y.  Central,  etc.,  R.   Co.,  72  N.  Y.          12  Bridgman's  v.  Corey's  Estate  (Vt.),  20 
607;  Dickinson  v.  City  of  Poughkeepsie,       Atl.  Rep.  273  [1890]. 
75  N.  Y.  64:  Commonwealth  v.  Sturtivant, 


296     ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§292A. 

to  the  jury-room.1  The  results  of  practical  experiments  made,  such  as  the 
stopping  of  a  train  of  cars  under  the  same  conditions,3  maybe  shown  in  evi- 
dence. In  another  case  an  expert  witness  was  not  allowed  to  testify  that,  us 
an  experiment,  he  fired  a  bullet  through  a  plank,  to  ascertain  the  size  of  the 
hole  made  as  compared  with  the  bullet.3 

292A.  Judicial  Notice. — Courts  frequently  take  notice  of  certain  noto- 
rious facts  as  being  prima  facie  true  and  as  not  needing  proof.  Some 
things  are  so  well  known  to  all  that  they  cannot  be  denied,  but  whether  or 
not  the  court  will  take  judicial  notice  may  depend  largely  upon  the  trial 
justice.  If  self-evident  or  so  notorious  as  to  require  no  proof,  then  expert 
testimony  will  not  be  admitted  to  prove  or  disprove  them. 

The  appellate  court  will  not  take  judicial  notice  of  the  rules  of  the  court 
below,4  of  the  rules  of  the  county  court,5  or  of  city  ordinances;6  but  a  city 
court  may  take  notice  of  city  ordinances.7  Courts  will  take  judicial  notice 
of  a  statute  incorporating  a  town  in  a  certain  county,8  or  that  a  city  is  duly 
incorporated  under  the  laws  of  the  state.9 

Courts  have  taken  judicial  notice  of  the  following  facts,  viz. :  that  a 
certain  day  of  a  certain  month  was  Sunday;10  that  the  September  term  of 
the  circuit  court  does  not  extend  beyond  October;11  of  the  population  of 
cities  and  towns  according  to  the  authorized  census  reports;12  of  mortality 
tables  showing  the  natural  expectancy  of  duration  of  one's  life  at  a  given  age." 

A  court  will  take  judicial  cognizance  of  the  geographical  facts  and  features 
of  the  country,  of  the  existence  of  a  large  body  of  water  in  the  state,14  of  its 
rivers  and  mountains,15  of  the  boundaries  of* an  incorporated  city,  and  of  the 
location  and  course  of  a  river  frequently  mentioned  in  the  public  statutes  of 
the  state; ie  that  a  certain  county  in  the  state  is  in  an  arid  region.17 

The  court  will  take  judicial  notice  of  the  organization  of  the  Dominion 
of  Canada;18  of  the  fact  that  several  railroads  run  into  a  city;19  that  the 
streets  run  in  certain  directions,  and  where  they  begin  and  end; 20  how  the 

1  Linch  v.  Paris  L.  &  G.  E.  Co.   (Tex.),  E.  Rep.  157;  State  v.  Marion  Co   Ct  (Mo.) 

15  S.  W.  Rep.  208  [1891].  30  S.  W.  Rep.  103,  31  S.  W.  Rep   103 

3  Byersfl.  Nashville,  C.  &  St.  L.  Ry.  Co.  1J  Kansas  City,  M.  &  B.  R.  Co.  v.  Phil- 
(Tenu.),  29  S.  W.  Rep.  128-  lips  (Ala.),  13  So.  Rep.  65. 

*  Evans  v.  State  (Ala.),  19  So.  Rep.  535.  14  Mossmau    v.    Forrest,  27     Ind.    233; 

4  Gudgeon  v.  Casey,  62  111.  App.  599.  People  «.  Brooks  (Mich  )   59  N    W  Rep 
6  Kessel  v.  O'Sullivan,  60  111.  App.  548.        444. 

6  Weaver  v.    Snow,   60  111.    App.    624;  15  Win nepiseogee  Lake  Co.  v.  Young,  40 

Shaufelter  ®.  Baltimore  (Md.),  31  Atl.  Rep.  N.  H.  420;   Com.  t>.  Desmond,  103  Mass. 

439.  445;  and  see  12  Amer.  &  Eng.  Ency.  Law 

I  City  of  McPherson  v.  Nichols  (Kan.),  169. 

29  Pac.  Rep.  679.  16  De  Baker  v.  Southern  Cal.    Ry.   Co. 

8  Stone  v.  Halstead,  62  Mo.  App.  136.  (Cal.),  39  Pac.  Rep.  610. 

9  Penna.  Co.  v.  Horton  (Ind.   Sup.),  31  "  McGhee  Irrigating  Ditch  Co. •».  Hudson 
N.  E  Rep.  45.  (Tex.  Sup.),  22  S.  W.  Rep.  398. 

10  Brennan  v.  Vogt  (Ala.),   11  So.  Rep.  18  Calhoun  v.  Ross,  60  111.  App  309. 
893:   Williamson  v.   Brandenburg  (Ind.)  19  Texas  &  P.  Ry.  Co.  v.  Black  (Tex.),  27 
32  N.  E.  Rep.  1022.  S.  W.  Rep.  118. 

II  Andersons.  Anderson  (Ind.  Sup.),  40  20  Skelly  v.  New  York  El.  R.  Co.,  27  N. 
N.  E.  Rep.  131.  Y.  Supp.  304. 

18  Hawkins  v.  Thomas  (Ind.  App.),  29  N. 


§  293.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  297 

houses  are  numbered,  and  on  which  side  are  the  odd  numbers; '  but  not  of 
the  distance  between  the  various  streets  of  the  city  of  Chicago.3 

Courts  have  taken  judicial  notice  of  the  government  surveys  and  the  legal 
subdivision  of  public  lands; s  of  the  initials  used  in  surveys  and  descriptions;  * 
of  the  magnetic  variation  of  a  needle  from  the  true  meridian; 5  that  railroad 
lines  are  marked  out  and  the  grades  fixed  by  the  company's  engineer; 8  that 
trains  running  upon  a  railroad  are  run,  directed,  and  controlled  by  the 
owners  of  the  road;7  that  it  is  within  the  scope  of  a  section-foreman's 
agency  to  keep  both  the  track  and  right  of  way  in  proper  condition;8  of 
what  everybody  knows  incident  to  railway  travel; 9  but  not  that  C.  B.,  &  Q. 
R.  Co.  means  the  Chicago,  Burlington  and  Quincy  Railroad  Company;10 
that  the  telephone  has  become  an  ordinary  medium  of  communication; "  of 
the  art  of  photography,  the  mechanical  and  chemical  processes  employed,, 
and  the  scientific  principles  on  which  they  are  based,  and  their  results.12 

The  court  has  recognized  the  fact  that  a  man  sitting  down  on  top 
of  a  car  could  not  strike  his  head  against  an  overhead  bridge  that  was  4 
feet  7  inches  above  the  top  of  the  car,  for  such  a  man  would  have  to  have 
been  9  feet  high,  which  was  never  known ; 13  that  a  person  with  an  artificial 
leg  can  stand;14  that  whisky,  apple-brandy,  and  a  whisky  cocktail  are 
intoxicating;15  that  kerosene  is  inflammable,18  but  not  that  it  is  refined 
coal-oil  or  earth-oil.17 

These  examples  are  sufficient  to  show  what  the  courts  may  take  judicial 
notice  of,  but  there  can  be  no  certainty  that  they  will  do  so.  The  expert 
must  be  prepared  to  prove  anything  and  everything  necessary  to  the  eluci- 
dation and  explanation  of  the  truth,  and,  if  necessary,  by  practical  example. 
All  courts  have  not  had  the  same  experience  and  training  and  cannot,  there- 
fore, be  equally  well  informed.  One  might  know  less  of  cocktails  and 
applejack  and  more  of  coal-oil  and  kerosene,  while  another  might  have 
lived  in  many  districts  of  this  country  and  never  have  seen  the  common 
crude  petroleum,  or  coal-oil. 

293.  Right  to  Use  Models  and  Make  Tests  Rests  with  Trial  Court.— 
While  illustrations  bearing  more  directly  upon  engineering  are  the  use  of 

1  Canavan  v.  Stuyvesant,  27  N.  Y.  Supp.      Iowa  185. 

413.  n  Globe  Printing  Co.  v.  Stohl,  23  Mo. 

2  North  Chicago  St.  R.  Co.  v.  Cheetham,       App.  451. 

58  111.  App.  318.  i2  Luke  v.  Calhoun  Co.,  52  Ala.  115. 

3  See  cases  12  Amer.  &  Eng.  Ency.  Law  1S  Hunter  v.  New  York,  O.  &  W.  Ry. 
171.  Co.  (N.  Y.),  23  N.  E.  Rep.  9. 

4  Kile  v.  Yellowhead,  80  111.  208.  u  New  Jersey  Traction  Co.  i>.  Brabban 

5  Bryan  v.  Beckley,  Litt.  Sel.  Cas.  (Ky.)  (N.  J.),  32  Atl.  Rep.  217. 

91.  15  Schlicht  v.  State,  56  Ind.  173;  Thomas 

6  Alabama  M.  Ry.  Co.  «.  Coskey  (Ala.),  v.  Commonwealth  (Va.),  17   S.   E.  Rep. 
9  So.  Rep.  202.  788;  United  States  «.  Ash  (D.  C.),  75  Fed. 

7  South,  etc.,  R.  Co.  •».  Pilgreen,  62  Ala.  Rep.  651. 

305.  16  Wood  v.  N.  W.  Ins.  Co.,  46  N.  Y. 

8  Mobile  &  O.  R.  Co.  v.  Stinson  (Miss.),      421;  State  «.  Hayes,  78  Mo.  307. 

21  So.  Rep.  522.  "  Bennett  «.  N.  British  Ins.  Co.,  8  Daly 

9  Dowoie  v.  Hendrie,  46  Mich.  498.  (N.  Y.)  471. 

10  Accola  0.  Chicago,  B.  &  Q.  R.  Co.,  70 


298       ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  294. 

maps,  monuments,  and  descriptions  in  deeds  as  evidence  of  titles;  valuable 
evidence  furnished  by  accurate  and  verified  models;  instances  in  which  the 
jury  is  taken  to  view  works  and  premises  in  question, — the  employment  of 
all  these  is  in  general  within  the  discretion  of  the  trial  court,  and  an  expert 
witness  should  not,  under  any  circumstances,  be  surprised  if  he  be  refused 
the  privilege  of  making  practical  tests  or  illustrations.  His  privileges  will 
probably  depend  upon  the  importance  of  his  tests,  the  leisure  of  the  court, 
and  the  disposition,  impressions,  and  intelligence  of  the  court  and  jury. 

294.  An  Expert's  Advice  to  Fellow  Experts. — Before  drawing  the  division 
of  this  subject  to  a  close,  the  author  adds  a  few  maxims  recommended  by  an 
eminent  engineer  of  experience  as  an  expert,  who  concludes : x 

"That  the  court  always  understands  that  an  engineer  has  been  pre- 
viously advised  in  regard  to  questions  upon  which  his  direct  examination 
will  be  made,  and  that  he  has  prepared  himself  by  study  and  reasoning  to 
apply  to  the  case  in  hand  all  of  the  scientific  principles  which  are  necessary 
to  elucidate  it. 

"  It  is,  therefore,  unwise  to  attempt  to  conceal  from  the  court  that  the 
engineer  has  been  in  consultation  with  the  lawyers  upon  the  side  upon 
which  he  has  been  called,  or  that  he  has  been  paid  or  is  to  be  paid  profes- 
sional prices  for  his  services. 

"  No  provocation  on  the  part  of  a  lawyer  will  justify  an  uncourteous 
reply,  and  it  is  unwise  to  give  back  a  sharp  or  witty  answer. 

"If  the  lawyer  uses  improper  language  in  addressing  the  witness,  the 
latter  may  appeal  to  the  judge. 

"If  questions  requiring  study  and  research  are  put  to  the  witness,  he 
may  reply,  '  I  have  not  considered  the  subject  under  that  aspect  sufficiently 
to  reply/  or  ' I  shall  require  a  little  consideration  before  I  can  reply;  I  will 
make  a  note  of  your  question,  and  answer  it  as  soon  as  possible/  "  2 

"A  witness  is  often  called  upon  to  express  an  opinion  on  some  subject 
which  is  a  matter  of  exact  or  approximate  measurement  and  calculation  ;  it 
is  often  impossible  for  him  to  make  such  calculations  accurately  in  the 
presence  of  a  roomfull  of  people.  His  proper  course,  under  such  circum- 
stances, is  to  take  a  note  of  the  question  and  inform  the  counsel  that  he 
will  make  the  calculation  and  give  it  in  writing.  In  strict  law,  however,  a 
witness  on  the  stand  is  not  compelled  to  make  any  calculations  except  those 
of  a  simple  and  elementary  character.3*  It  is  absurd  to  call  upon  the 

1  William     J.     McAlpine     before     the  tell  the  contents  of  a  stomach  on  the  stand. 
American  Society  of  Civil  Engineers,  1870.  Eastharn  v.  Riedell,   125  Mass.  585,  and 

2  This  is  justified  by  the  courts,  for  an  Insurance  Co.  «.  Tobin,  32  Ohio  St.  96. 
engineer  can  no  more  be  expected  to  an-          3  Newlan  v.  Dunham,  60  111.  233.     An 
«wer  questions  embodying  tedious  calcu-  expert  witness  will  not  be  required  to  give 
lations  than  can  a  chemist  be  required  to  a    categorical    answer  to    a    question   of 

*  Although  an  engineer  may  not  be  required  to  make  calculations  upon  the  witness- 
stand,  he  may  be  required  to  give  the  basis  upon  which  they  were  or  should  be  made  If 
it  is  the  intention  of  the  opposition  to  show  that  the  engineer  is  unable  to  make  the 
estimate  and  do  the  necessary  calculations,  he  may  be  asked  if  he  can  make  them. — ED. 


§  296.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  299 

engineer  to  perform  duties  of  a  professional  character  when  upon  the  stand 
as  a  witness  or  to  give  professional  opinions  as  it  would  be  for  a  lawyer, 
under  the  same  circumstances,  to  be  called  upon  for  legal  opinions  upon 
some  grave  question  of  law." 

The  distinguished  engineer  continues  by  adding,  "that  for  many 
years  the  engineer  abroad  has  been  called  into  a  new  field  of  duty,  viz., 
that  of  acting  as  associate  or  adviser  to  the  counsel  in  regard  to  all  profes- 
sional (engineering)  points  of  the  case." 

295.  Experts  as  Assistants  in  Examination  of  Witnesses  by  Attorneys. — 
It  must  be  evident  that  an  engineer  could  not  perform  such  functions  with- 
out a  fair  knowledge  of  the  rules  and  laws  of  expert  testimony,  upon  which 
ground  the  author  will  excuse  the  considerable  depth  to  which  he  has  gone 
into  the  subject.     This  position  has  long  since  become  a  field  of  large  prac- 
tice and  high  compensation,  and  no  lawyers  now  venture  upon  the  conduct 
of  a  case  involving  important  engineering  or  architectural  questions  without 
assistance  from  engineers  or  architects.   A  professional  man  appointed  under 
Code  Civ.  Proc.  §  873,  to  make  an  examination  of  a  subject-matter  of  an  ac- 
tion, is  an  officer  of  the  court,  and  should  be  sworn.1  An  attorney  has  not  the 
right  to  be  present,  nor  to  have  men  present,  at  the  physical  examination  of 
his  female  client,  made  by  order  of  the  court  pursuant  to  Code  Civ.  Proc. 
§  873,  providing  for  the  physical  examination  of  a  female  plaintiff  by  a 
female  physician.1 

296.  Compensation — Reward  for  Services  as  an   Expert  Witness. — The 
question  of  extra  compensation  to  an  expert  who  is  called  to  give  an  opin- 
ion which  requires  the  exercise  of  professional  skill  and  study  is  one  about 
which  there  is  no  general  rule.     The  decisions  are  wholly  at  variance,  and 
different  states  have  established  their  own  laws.     Some  have  enacted  laws 
giving  extra  compensation,  and   some  have  denied  it  altogether.      Ehode 
Island,  North  Carolina,  and  Iowa "  have  statutes  allowing  such  additional 
compensation   as  the  court  may  determine.      Massachusetts   courts   have 
allowed  experts  to  be  selected  in  criminal  cases  and  their  compensation  to  be 
paid  out  of  the  public  treasury.*     Indiana  and  Illinois,  on  the  other  hand, 
refuse  to  acknowledge  the  right  to  extra  compensation,  and  require  experts 
to  attend  their  courts  and  give  their  opinions  with  no  compensation  more 
than  that  allowed  to  any  other  witness.4 

Courts  have  usually  expressed  the  opinion  that  services  of  an  expert  wit- 
ness should  be  compensated,  but  the  decisions  rendered  as  to  whether  he 
must  be  remunerated  before  he  testifies  are  opposed.  Physicians  have 
been  committed  for  contempt  of  court  and  fined  for  refusing  to  testify  until 

opinion  evidence,  which  he  says  he  can-  2  See  Statutes  of  the  States. 

not     answer     categorically.      Quinn     u.  'Rules  of    Practice   in   Chancery,    104 

O'Keeffe  (Sup.),  41  N.  Y.  Supp.  116.  Mass,  573. 

1  Lawrence  v.  Samuels  (City  Ct.),  44  N.  4  Indiana  Revised  Statutes,  1881,  p.  94, 

Y.  Supp.  602.  §  504. 


300    ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.    [§  296. 

their  fees  were  paid  or  secured  to  them.1  In  Arkansas  it  has  been  held 
that  a  physician  is  not  entitled  to  any  more  than  the  regular  witness 
fees  for  his  expert  testimony  in  respect  to  a  post-mortem  examination 
he  had  made.2 

In  these  cases  the  physician  had  been  employed  in  attendance  of  the 
case  or  had  made  examinations  of  the  subject  of  inquiry  and  investiga- 
tion. They  were  criminal  cases,  in  which  it  was  the  duty  of  every  man 
to  lend  his  efforts  in  aid  of  justice  ;  but  one  of  those  cases  held  that 
it  made  no  difference  whether  the  judicial  investigation  was  of  a  civil 
or  criminal  nature.3  Two  decisions  were  reached  in  Indiana,  where  a 
physician  had  been  called,  not  on  account  of  any  knowledge  of  the  facts 
of  the  case,  or  because  he  had  had  any  connection  with  it,  but  merely  for 
his  opinions  on  professional  questions,  and  it  was1  held  that  he  need  not 
answer  questions  involving  professional  skill  and  knowledge.4  This  deci- 
sion was,  however,  opposed  by  two  dissenting  judges,5  and  can  have  little 
weight  to-day  from  the  fact  that  a  statute  has  been  passed  opposed  to  the 
decision.6 

It  is  established  law  in  England  that  a  witness  selected  and  called  for  hi& 
opinion  need  not  testify  without  extra  compensation.  The  earlier  decisions 
in  this  country  followed  the  English  law,  and  higher  courts  refused  to  sanc- 
tion penalties  and  fines  imposed  for  such  neglect  or  refusal  to  give  pro- 
fessional opinions,  without  extra  compensation.  The  skill  and  knowledge 
of  experts  were  regarded  as  professional  services  and  as  property,  which 
were  no  more  at  the  mercy  of  the  public  than  were  the  goods  of  the  mer- 
chant or  the  crops  of  the  farmer,  and  the  decision  was  based  upon  the 
broad  principle  of  the  constitution  that  "property  [services]  shall  not  be 
taken  for  public  use  without  just  compensation." 

On  the  same  principle,  it  has  been  held  that  interpreters  cannot  be  com- 
pelled to  serve  a  court  without  compensation.7  If  a  man  cannot  be  com- 
pelled to  translate  the  language  of  a  foreign  people,  how  can  the  scientist 
be  required  to  divulge  the  secrets  and  interpret  the  laws  of  nature  ? 

On  the  other  hand,  it  is  claimed  that  the  opinion  of  a  skilled  witness  is 
no  more  his  property  than  is  the  time  of  any  witness.  That  a  physician's 
vocation  is  that  of  healing  and  treating  diseases,  that  of  a  lawyer  is  the  in- 
vestigation, securing,  and  protection  of  his  clients'  rights  and  property,  and 
semble  of  engineering,  that  an  engineer's  professional  practice  or  business  is 
that  of  the  designing,  direction,  and  construction  of  works,  and  that  in  every 
case  their  opinions  are  not  the  object  of  their  studies,  but  a  necessary  result 
of  their  calling. 

lExparte  Dement,  53  Ala.  389,  5 Tex.  Alb.  L.  j!  242. 
App.  374,  112  111.  540.  5  Dills  v.  State,  59  Ind.  15. 

2  Clark  County®.  Kerstan  (Ark.),  30  S.          6  Indiana  Revised   Statutes  1881,  p.  94, 
W.  Rep.  1046.  §  504. 

3  Ex  parte  Dement,  53  Ala.  389.  7  Rogers'  Expert  Testimony  256. 

4  Buchannan  v.  State,  59  Ind.  1;  8.  c.,  17 


§  298.]  ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  301 

297.  Expert  Witness    in    Civil  and    Criminal   Cases   Distinguished. — 

Whether  the  power  of  a  court  in  civil  cases,  to  summon  an  expert  to  appear, 
and  to  compel  him  to  testify  to  professional  opinions,  in  cases  of  which  he 
has  no  knowledge  of  the  facts,  and  with  which  he  has  had  no  connection, 
would  be  upheld  by  higher  courts,  cannot  be  foretold.  In  criminal  cases 
where  the  law  is  endeavoring  by  its  every  effort  to  do  justice  to  a  man  who 
has  been  charged  with  committing  a  great  crime,  it  may  be  that  public 
policy  demands  that  every  citizen  should  assist  in  the  administration  of  the 
laws  of  his  country  ;  but  in  civil  cases  it  -is  submitted  that  the  necessity 
does  not  exist,  and  such  a  usurping  of  a  man's  freedom  and  appropriation 
of  his  services  is  an  outrage,  in  a  professedly  free  country,  not  countenanced 
by  the  autocratic  governments  of  Europe. 

There  is  no  doubt  a  strong  tendency  to  maintain  this  imperious  practice 
of  appropriating  professional  services  to  public  use,  but  it  must  be  accom- 
plished by  judicial  legislation  if  extended  to  cases  in  which  the  witness  has 
no  interests  nor  knowledge.  If  the  witness  in  the  beginning  professes  his 
titter  ignorance  of  the  facts  of  the  case,  claims  to  have  no  knowledge  of  the 
parties  or  the  circumstances  of  the  complaint,  it  will  require  an  exercise  of 
power  not  often  manifest  to  compel  him  to  testify. 

298,  If  Expert  Has  Knowledge  of  Facts  of  Case,  He  must  Testify. — If  an 
expert  takes  the  stand  and  without  protestation  testifies  in  part  to  facts 
and  circumstances,  it  is  quite  likely  that  the  court  will  insist  on  his  answer- 
ing questions  calling  for  his  professional  opinion.     This  belief  is  supported 
by  a  recent  Illinois  case,  in  which  a  physician  who  had  attended  the  vic- 
tim, and  had  testified  to  some  facts  of  the  case,  refused  to  give  his  profes- 
sional opinion  as  to  the  causes  and  results  of  his  investigations  until  his 
professional  fee  was  paid  or  secured  to  him.     He  was  fined  as  for  contempt, 
which  was  supported  on  appeal.1     In  Arkansas  it  has  been  held  that  in 
criminal  cases  where  no  preliminary  examination  or  preparation  has  been 
required,  an  expert  who  testifies  can  demand  no  compensation  in  addi- 
tion to  the  usual  fees  allowed  witnesses.2     In  Colorado  court  of  appeals  it 
has  been  held  that  if  the  witness  testifies  in  a  criminal  case  in  obedience  to 
a  subpoena,  without  making  in  advance  any  demand  for  special  compensation, 
he  can  recover  only  the  statutory  witness  fees.3 

It  has  been  held  that  where  an  agreement  is  made  by  one  to  go  into 
oourt  at  a  future  day  and  testify  as  an  expert  as  to  a  matter  which  he  had 
examined  as  a  civil  engineer,  he  is  entitled  to  recover  the  reasonable  com- 
pensation (in  addition  to  the  statutory  fees)  promised  him  therefor,  though 
he  is  afterwards  summoned  and  paid  the  regular  statutory  fees,  and  does 
not  then  claim  extra  compensation,  or  give  notice  that  he  will  make 
such  c.'uim,  and,  though  testifying,  and  advising  counsel  as  to  questions 

1  Wright  v.  The  People,    112  Ills.  540      Rep.  451. 

[1884]  3  Board  Com'rs  Larimer  County  v.  Lee 

2  Flinn  v.  Prairie  Co.  (Ark.),  29  S.  W.      (Colo.  App.),  32  Pac.  Rep.  841. 


302      ENGINEERING  AND  ARCHITECTURAL  JURISPRUDENCE.  [§  299. 

to  be  asked  him  and  other  witnesses,  he  is  not  asked  any  question  as  an 
expert.1 

An  expert  witness  employed  by  an  attorney  to  testify  in  a  proceeding 
may  recover  compensation  therefor  from  the  party  represented  by  the 
attorney,  in  the  absence  of  evidence  that  the  witness  had  notice  of  the 
limitation  of  the  attorney's  authority,  or  agreed  to  look  solely  to  the  attor- 
ney for  compensation.2 

299.  Expert's  Knowledge,  Experience,  and  Character  may  be  Inquired 
Into. — When  an  expert  takes  the  stand  he  must  answer  under  the  same 
rules  as  ordinary  witnesses,  however  embarrassing  the  questions  may  be. 
Not  only  his  character,  reputation,  and  truthfulness  may  be  inquired  into  and 
tested,  but  he  is  subject  to  an  examination  as  to  his  professional  qualifica- 
tions, his  knowledge,  accuracy,  and  learning. 

For  the  annoyance  and  risks  of  injury  to  a  man's  business  consequent  to- 
undergoing  such  an  examination  and  for  the  information  thus  established, 
the  courts  must  declare  no  compensation  is  due  or  they  cannot  support  their 
decisions. 

300.  If  Expert  Cannot  Collect  Extra  Compensation,  then  No  Extra  Prep- 
aration Can  be  Required. — However  doubtful  the  law  may  be  as  to  extra 
compensation  to  experts  for  professional  opinions,  it  is  certain  that  if  an 
expert  can  demand  no  more  pay  than  an  ordinary  witness,  so  certain  is  it 
that  he  cannot  be  compelled  to  make  any  more  preparation.     He  may  re- 
fuse to  make  investigations,  inquiries,  or  any  preparation  whatever  for  the 
occasion  of  the  trial.     If  an  engineer,  he  cannot  be  required  to  inspect 
works,  or  to  investigate  a  casualty,  or  to  make  estimates  and  computations; 
but  whether,  having  made  them  with  the  expectation  or  under  the  promise- 
of  compensation,  he  can  be  compelled  to  testify  to  his  results  and  con- 
clusions before  being  paid,  is  an  unsettled  question.     Some  inference  may  be 
drawn  from  a  case  of  a  physician  who,  having  made  a  post-mortem  ex- 
amination of  a  body,  was  compelled  to  give  the  results  of  it  without  extra 
compensation,  though  the  court  acknowledged  it  could  not  have  ordered  him 
to  make  the  examination  for  the  purpose  of  testifying.3     Where  there  has 
been  no  special  contract  with  the  witness,  and  it  is  not  shown  that  the  re- 
fusal to  pay  him  extra  compensation  would  be  an  injustice,  the  court  trying 
the  case  has  no  power  to  order  payment  of  extra  fees  to  the  witness.4 

301.  Legislation   is  Needed   to   Improve   Expert  Testimony. — In   con- 
clusion, it  may  be  said  that  the  law  of  expert  testimony  is  in  a  very  un- 
satisfactory condition,  and  sadly  needs  legislation.    It  should  be  the  duty  of 
every  engineer  to  use  his  efforts  to  secure  that  legislation,  each  in  his  own 
state. 

1  Barrus  v.  Phaneuf  (Mass.),  44  N.  E.  8  Rogers'  Expert  Testimony  261. 

Rep.  141.  *  Board  Com'rs  Larimer  County  «.  Lee 

5  Mulligan  9.  Cannon  (Sup.),  41  N.  Y.  (Colo.  App.),  32  Pac.  Rep.  841. 
Supp.  279. 


§  301.]          ENGINEER'S  AND  ARCHITECT'S  EMPLOYMENT.  303 

First,  some  law  should  be  enacted  to  abolish  the  present  system  of 
allowing  the  parties  or  their  attorneys  to  select  the  experts.  Secondly,  com- 
pensation should  be  allowed,  and  either  fixed  by  law  or  power  given  the 
court  to  determine  it.  Thirdly,  experts  should  be  selected  by  the  court  or 
appointed  by  the  government,  to  do  away  with  the  present  practice  of  using 
experts,  on  the  witness-stand,  to  win  cases. 

No  men  or  body  of  men  have  more  regret  that  "engineering  science 
has  become  a  commodity,  and  that  engineers  have"  (in  some  instances) 
"become  hired  advocates"  than  engineers  themselves;  and  to  their  own 
efforts  chiefly  must  they  look  for  such  a  change.  A  well-directed  crusade 
by  the  organized  industrial  and  scientific  forces  of  the  country  is  what 
would  bring  it  about.  It  cannot  come  too  soon.  Then  only  will  courts 
get  true  scientific  opinions,  and  the  scientific  professions  free  themselves 

from  the  suspicion  of  bartering  their  opinions.1 

• 

1  Upon  the  subject  of  Expert  Testimony  Clemens  Herschell,  C.E.,  in  Engineering 

the  engineer  is  referred  for  special  study  News,  1887,  vol.  17,  pp.  234  et  seg  ;  Inau- 

to  Lawson's  Expert  and  Opinion  Evidence,  gural  Address  of  President  Wolcott  Gibbs, 

by  John  D.  Lawson,  1883;  Rogers'  Expert  National  Academy  of  Sciences,  Proceed- 

Testimony,  by  Henry  Wade  Rogers,  1883;  ings  1896. 
an    article    of   interest   to  engineers   by 


INDEX. 


References  are  to  sections. 


ABSENCE : 

A  cause  for  dismissing  an  employee,  205 

ABSOLUTE  ACCURACY  : 

Not  required  of  a  professional  man,  229, 

258 

ACCEPTANCE  (see    also  OFFER  AND 

ACCEPTANCE): 
Of  offer  : 

Must  be  absolute,  positive,  and  uncon- 
ditional, and  in  same  terms  as  offer, 
96 

Without  restating  terms  of  offer,  96 

Conditional  acceptance  is  a  counter- 
offer, 96 

Within  time  fixed  for  acceptance,  96, 
97 

No  acceptance  amounts  to  a  rejection, 
96 

By  post  or  telegraph,  95 

Is  completed  by  mailing  of  letter  or 
delivery  of  message  of  acceptance, 
95 

Massachusetts  rule  that  message  of  ac- 
ceptance must  be  communicated  to 
offerer,  95 

Letter  addressed,  stamped,  and  mailed 
is  presumed  to  have  been  received, 
95 
Of  office  : 

Time   of  acceptance  limited  by  terms 

of  offer,  96,  97 
Of  plans : 

Submitted  in  competition  for  prize,  812 
Of  proposal  (see  also  AWARD  OF  CON- 
TRACT, 182-183): 

What  is  an  acceptance  that  will  create 
a  binding  contract,  183 

For  public  work,  170-171,  182-184 

Conditioned  on  execution  of  formal 
contract,  91,  97,  183,  797 

For  private  work,  188 
Of  works  : 

Not  a  ratification  of  a  void  contract,  45 

No  contract  to  pay  to  be  implied  there- 
from, 53 

Does  not  render  city  liable  for  work, 
45,53 


ACCOUNT  BOOKS  : 

Use  of,  in  court  by  officer  of  company, 

278 

ACKNOWLEDGMENT  : 

Of  old  debt  revives  it,  and  forfeits  pro- 
tection of  statute  of  limitations,  118 

ACQUAINTANCE  : 

Of  expert  with  facts  of  case,  288 

ACTION  BY  CONTRACTOR : 

Against  engineer  for  want  of  care  and 
skill,  246-248 

ACT  OF  INCORPORATION  : 

Powers  of  company  limited  to  those  ex- 
pressly conferred,  44,  138 

ADMINISTRATOR,  see  EXECUTOR  AND 
ADMINISTRATOR 

ADMISSIONS  : 
Of  engineer: 

To  contractor,  evidence  of,  249A 

ADVANTAGES : 

Of  letting  work  by  inviting  bids,  132 
ADVERSE  POSSESSION: 

Cannot  hold,  against  government,  116 
ADVERTISEMENT: 

Is'  not  an  offer,  but  a  request  for  offers, 

133 

For  proposals  to  do  work,  132 
Of  public  work  : 
Objects  to  be  attained,  92,  132 
Form  to  be  adopted,  134,  135 
Form  of  advertisement  given,  133-135 
Cannot  be  changed  by  verbal  explana- 
tions, 161 

For  proposals,  mistake  in,  135 
A  condition  precedent  to  letting  con- 
tract, 135 
Necessity  of  a  new  one,  when  all  bids 

have  been  rejected,  174,  175 
Not  necessary  to  readvertise  when  con- 
tractor is  in  default,  174,  175 
What  work  is  the  subject  of,  161 
Need  not  advertise  for  carriage-hire, 
fireworks,  garbage  removal,  renting 
offices,  164 

305 


306 


INDEX. 

References  are  to  sections. 


ADVICE  : 

Of  one  expert  to  others,  294 

ADVISER  : 

Expert,  to  attorney,  295 

AGENCY : 

Proof  of  agency,  31 

May  be  shown  by  parol  evidence,  123 

AGENT  (see  also  ENGINEER  on  ARCHI- 
TECT ;  PUBLIC  OFFICER)  : 

Powers  of,  how  conferred,  29,  56 

Authority  to  contract,  33 

Authority  must  come  from  principal,  37 

Unauthorized  acts  do  not  bind  principal, 
35 

Private  instruction  to,  31-34 

Liability  of,  under  personal  contract  he 
has  executed,  30-40 

Signature  of,  to  a  contract,  30 

Manner  of  executing  contract   to   bind 
principal,  30 

Contract  should  be  made  in  name  of  prin- 
cipal, not  of  agent,  30-32 

Principal  or  agent  bound,  30 

Anthority  to  contract  cannot  be  inferred 
from  business  or  family  relations,  38 

Contracts  under  seal,  made  by  agent,  32 

Who  is  the  principal,  37 

Agent's  acts,  ratified  or  adopted,  34 

Description  of,  in  a  contract,  30 

Of  owner  : 

Contractor  must   know  extent  of  his 

powers,  33,  35,  38 
Can  have  no  personal  interest  in  work, 

42 

Can   have  no  secret   interest  in   con- 
tractor's contract,  85 
Public    officer  and  agent  of   private 
party,  31 

AGREEMENTS  (see  also  CONTRACTS)  : 
For  extras  must  be  supported  by  a  con- 
sideration, 66 
To  stifle  competition,  148 
Must  have  a  consideration,  69,  131 

ALIEN  LABOR : 

Statute  forbidding  the  importation,  136 
Employment    of,  prohibited   on    public 
works,  144 

ALTERATIONS  : 

Of  terms  of  a  contract,  69,  122-126 

In  terms  of  bid  when  contract  is  executed, 

156 
Effect  of: 

On  surety,  20-22 

AMBIGUITY  (see  also  PAROL  EVIDENCE; 

WORDS  AND  PHRASES): 
Cleared  up,  by  parol  evidence,  122-126 

ANY  AND  ALL  BIDS   (see  also  BIDS): 
Right  to  reject,  171,  172 


APPROPRIATIONS  : 
For  the  work  : 

Contractor  should  watch  them,  44-47 
Should  not  be  exceeded,  44-47 
Excess  ratified  by  legislature,  46,  141 

ARBITRATORS  (see  also  ENGINEER  OR 

ARCHITECT): 

Not  liable  for  want  of  care  and  skill,  247 
Must  be  dishonest  or  fraudulent  to  make 

liable  to  an  action,  248 
Position  an  "  absurd  "  one,  248 

ARCHITECT    (see  also  ENGINEER   OR 

ARCHITECT)  : 

His  property  in  plans  and  specifications, 
215,  216-222 

ARCHITECTURE  : 

Questions  in,  the  subject  of  expert  testi- 
mony, 291 
ARTICLE  : 

Sale  of  article  to  be  manufactured,  101 

Patented,  in  bids  for  public  work,  163 

164 
ASSENT : 

An  essential  element  of  a  contract,  88-97 
ASSESSMENTS : 

May  be  vacated  when  contract  is  illegal, 

157 
ASSIGNABLE  : 

Contracts  : 

For  personal  service,  13-16 
What  is  assignable,  14 
Building  contracts  are,  14 
Construction  contracts  are,  14 
To  build  lighthouse,  13 
To  drill  an  oil-well,  14 
To  make  gravel  roof,  14 
For  street  cleaning,  14 
For  street  construction,  14 
Awarded  to  lowest  bidder  are,  15,  148 
Lien  of  mechanic  or  materialman,  16 
Moneys  not  earned,  16 
Test  of,  in  N.  Y.  State,  15 
ASSIGNEE  : 

Interest  which  he  takes,  13-16 

Named  in  contract,  11 

If  named,  contract  is  assignable,  11,  13 

Use  of  term  in  contract  raises  presump- 
tion that  service  is  not  personal,  13 

Construction    contracts   are   usually   as- 
signable, 14 
ASSIGNMENT  : 

What  amounts  to,  13-16 

Invalid  and  worthless,  assignee's  loss,  16 

Is  subject  to  defenses  of  obligor,  16 

Notice  of,  should  be  given,  16 
ASSISTANTS  : 

Recovery  for  services  of,  214 

Liability  for  the  acts  of,  243 

Liability  of  public   officers  for  acts  of. 
253    ' 


INDEX. 


307 


References  are  to  sections. 


ASSOCIATIONS  : 

Unincorporated,  parties  to  contract,  48 

ATTORNEYS,  see  LAWYERS. 

ATTORNEY-GENERAL  : 

Intervention  of,  when  contract  is  not  let 
to  lowest  bidder,  177,  178 

AUCTION  SALE: 

Compacts  to  stifle  competition,  148 

AUTHORITY  : 

To  contract  : 

Not  proved  by  business  or  family  rela- 
tions, 38 

AVERAGE  ADJUSTER  : 

Not  liable  for  want  of  care,  249 

AWARD  OF  CONTRACT  : 

What  constitutes,  176,  182,  183 
To  lowest  bidder,  176-178 
Act  is  discretionary,  171-173 
May   be   deferred,  or   the  project  aban- 
doned, 171 

AWNING  : 

Contract  to  erect  held  void,  76 

BANKRUPTS  : 

Parties  to  contract,  27 

BENEFICIARY : 

Of  a  contract,  effect  of  allowing  him  to 
sue  on  contract,  68 

BENEFIT  (see  also  CONTRACTS  IMPLIED 

IN  LAW)  : 

Benefit  to  promisor  a  consideration  of  a 
contract,  61 

BIAS: 

Of  expert  w. messes,  270 
Not  confined  to  experts,  271 

BIDS      OR      PROPOSALS     (see      also 
BIDDER  ;    COMPETITION  ;     LOWEST 
BIDDER)  : 
Are    but    offers,    require    accepting    to 

make  contracts,  132 
Invitation  to  make  proposals,  132 
Mode  of  entering  into  contract,  132 
Must  be  complete  and  definite,  146 
Plans  and  specifications  a  part  of,  188 
There  must  be  competition,  53,   82,  132 

140,  148 
System  of  letting  contracts,  advantages, 

132 
Matters  to  be   considered  in  preparing, 

151 

Necessity    for  restrictions   and    regula- 
tions, 137 

Conventional  form  for,  185 
Form  of  instruction  to  bidders,  145,  151, 

165,  167,  170 

Must  be  in  form  prescribed,  146 
Information  in  regard  to  awarding  and 

executing  contract,  170 


BIDS  OR  PROPOSALS— Continued. 
Should  be  a  standard  for  comparison,  153 
Should  be  compared  by  a  common  stand- 
ard, 132 

Must   conform   to    quantities,    specifica- 
tions,   and   stipulation    adopted   as    a 
standard,  155,  157 
Contract  must  conform  to  bid,  140 
Contractor  can   insist  on  same  terms  in 

contract,  168 
Terms    of    contract     must    agree    with 

terms  of  bid,  156,  157 
Should   not  contain  more  nor  less  than 

are  called  for,  155 

Bid  must  conform  to  instruction  to 
bidders,  as  to  labor  laws  and  limita- 
tion, though  their  legality  may  be 
doubtful,  144 

Irregularity  in  awarding  contract  not 
remedied  by  subsequent  ratification, 
141 

Informal  bids  cannot  properly  be  con- 
sidered, 146 

Must  be  considered  in  its  entirety,  171 
Cannot  be  compared,  after  omitting  part 

of  work  advertised,  157 
When   work    cannot     be    estimated    or 

described,  53 

By  unit  measure,  and  dimensions 
changed,  not  necessary  to  readvertise 
175 

To  furnish  materials,  184 
To  furnish  materials,  unrestricted,  184 
For  patented  articles,  163,  164 
Must  be  upon  a  cash  basis,  139 
Work  undertaken,  by   what   authority, 

136 

Contracts   let    in   violation  of  constitu- 
tional requirement  that  public   work 
be  let  to  lowest  bidder  cannot  be  rati- 
fied by  legislature,  141 
Acceptance  of,  should  be  conditioned  on 
execution   of   formal  contract,   91,  97, 
183,  797 
Certified  check  required  to  insure  good 

faith,  168 

Certified  check  to  accompany,  167-169 
All  bids  may  be  rejected,  171,  172 
Right  to  reject  any  bid,  171,  172 
Right  to  reject  any  and  all  bids,  171,  174 
Cannot  be  recalled,  181 
Lowest  bidder  fails  to  execute  contract, 

175 

Surety's  refusal  to  qualify,  169 
Rejected  for  being  informal,  152 
Reconsidered   without  a  new  advertise- 
ment, 174,  175 

Work  readvertised  or  adandoned,  178 
Unbalanced  bid,  not  the  lowest  bid,  54 
Unbalanced,  evidence  of  fraud,  149 
Extraordinary   bids,    evidence   of  fraud 

and  collusion,  54 
Fraudulent  bid  rendeco  contract  void,  148 


308 


INDEX. 


References  are  to  sections. 


BIDS  OR  PROPOSALS— Continued. 
For  work,  for  private  parties,  186-188 
Rights    and   liabilities   of  bidders,  132- 

185 

BIDDERS  (see  also  LOWEST  BIDDER  ; 
SURETY)  : 

Formalities  to  be  observed,  151,  152 

Propriety  of  certain  requirements  and 
restrictions,  152 

Mast  conform  to  reasonable  require- 
ments, 146 

Required  to  name  all  parties  interested, 
14» 

Oath  as  to  truth  of  statements  of  bid, 
145,  150 

Information  for,  to  prepare  bids,  133-140 

Information  should  be  full,  154 

Need  not  furnish  plans,  etc.,  154 

Should  see  that  terms  of  contract  agree 
with  those  of  bid,  90,  156,  157 

Is  not  benefited  by  offering  a  better  ma- 
terial or  guaranty,  155 

Must  take  materials  furnished  by  state 
or  city,  when  included  in  advertise- 
ment, 162 

Should  be  invited  to  the  opening  of  bids, 
183 

Cannot  alter  his  bid,  140 

Restrictions  excluding  certain  persons, 
147 

Required  to  possess  certain  qualifica- 
tions, 146 

Must  have  other  qualifications  than  pecu- 
niary, 173 

In  arrears,  or  default  to  city,  145,  147 

Who  acts  upon  representations  of  unau- 
thorized persons  does  so  at  his  peril, 
155 

Act  of  awarding  contract  discretionary, 
171-173 

When  can  lowest  bidder  compel  the 
award  of  contract  to  himself,  176 

Contract  to  refrain  from  bidding,  82,  148 

BILATERAL     CONTRACT    (see    also 

CONTRACTS)  : 
Both  parties  are  bound,  93 

BOARD,  MEMBERS  OF  : 

Must  act  as  a  unit,  39,  40,  48 

BOND  : 

Form  of,  in  a  proposal,  185,  Art.  22 
To  accompany  bid,  167-169 
For  benefit  of  laborers,    who    may   sue 
upon  it,  17 

BOOKS : 

Read  to  the  jury,  276 

Reading  of,  to  expert  witness,  276 

Are  not  evidence  of  what  they  contain 

276-278 
Use  of,  by  expert  witness,  276-278 


BORINGS : 

To  be  made  by  contractor,  286 
Engineer  liable  for  neglect  to  make,  238 

BOUNDARIES  : 

Agreement  with  regard  to,  and  statute  of 
frauds,  106 

BOWLING  ALLEY: 

Contract  to  erect,  held  void,  76 

BROKERS  : 

Agreements  to  divide  profits,  85 

BUILDERS  : 

Agreements  between,  to  refrain  from  bid- 
ding, 82,  148 

BUILDING: 

Contract  to  erect,  to  be  used  for  immoral 
purposes,  87 

BUILDING  INSPECTORS  : 

Of  a  city,  liable  for  neglect  of  duty,  239 

CARE,  see  also  ENGINEER  OR  ARCHITECT; 
EMPLOYEE. 

CARE  AND  SKILL  (see  WANT  OF  CARE 

AND  SKILL)  : 

Required  of  a  professional  man,  226,  237 
Required  of  specialists,  236 

CARRIAGE  HIRE  : 

For  public  officers,  need  not  be  adver- 
tised, 164 
CARVING  AND  CUTTING  STONE  : 

Act  relating  to,  in  New  York  State,  136, 

144 
CEREMONY  : 

Attending  bids  and  bidding,  132 
CERTIFIED  CHECK    (see    also    BIDS 

AND  BIDDERS)  : 

Bids  cannot  be  withdrawn,  181 
To  accompany  bid,  167,  168 
Must  accompany  bid  if    stipulated   for, 

168,  169 

Liquidated  damages  or  penalty,  168 
Forfeiture  of,  for  failure  to  execute  con- 
tract, 168 

Forfeiture  of,  cannot  be  relieved,  168 
Deposit  returned  to  bidder  and  accepted, 

not  a  waiver  of  right  to  contract,  183 
CHANGES  : 

In  written  contracts  by  parol  evidence, 

122-126 
In  work  : 

That  release  surety,  20-22 
Right  to  make,  in  public  work  let  to 
lowest  bidder,  reserved  in  contract, 
158 

In  terms  of  contract  so  as  to  differ  from 
terms  of   advertisement,  cannot   be 
made  safely,  157 
In  amount  of  work,  let  to  lowest  bid* 

der,  157,  158 
Must  have  a  consideration,  69 


INDEX. 


309 


References  are  to  sections* 


CHARTER  (see  also  STATUTES): 
Limitations,  43-47 
Limits  powers  of  corporation,  44,  138 

CHARTER  REQUIREMENTS  : 

Re  lowest  bidder,  51 

Must  be  strictly  carried  out,  51 

CHEMIST  : 

His  right  to   discoveries   when    an    em- 
ployee, 219 

CITIZEN'S  DUTY  : 

To  promote  justice  applied  to  an  expert, 

274 

CITY  (see  also  EMPLOYER): 
Its  liability : 

For  blunders  of  public  officers,  36,  45 

For  errors  of  its  engineers,  179 

For  act  of  its  officers  in  rejecting  low- 
est bid,  179 

For  damage  for  illegal  award  of  con- 
tract for  public  work,  178 

When  appropriation  has  been  ex- 
ceeded, 44 

"When  limit  of  indebtedness  has  been 
exceeded,  44 

For  work  done  under  an  illegal  con- 
tract, 143 

CITY  ENGINEER: 

Liability  for  mistakes,  258 

CITY  OFFICERS  : 

Compared  with  county  officers,  252 

CLAIMS  : 

Doubtful  claim  a  consideration  for  a  new 
promise,  69,  131 

CLUBS : 

Parties  to  contract,  48 

COLLUSION  (see  also  FRAUD  AND  COL- 
LUSION): 

Its  effect  on  bids  for  public  work,  148 
Between  engineer  and  contractor,  120, 121 

COMBINATIONS  : 

Of   contractors  to  lessen  rivalry  in  bid- 
ding, 148 
To  prevent  bidding  not  criminal  act,  148 

COMMISSIONERS  : 
Of  Public  Works  : 

Not  liable  for  tortious  acts  of  employ- 
ees, 253,  259 

COMMITTEE,  MEMBER  OF  : 

Must  act  as  a  unit,  39,  40,  48 

COMMUNICATIONS  : 

Between  owner  and  engineer  not  privi- 
leged, 249A 


COMPANY  OR  CORPORATION  (see 
also  OWNER  ;  PARTIES  TO  CONTRACT): 

As  party  to  contract,  43-48 

Capacity  of,  to  contract,  43 

Powers  limited  to  those  conferred  by 
charter,  48 

Contracts,  ultra  vires,  43 

Information  in  regard  to,  37 

Who  are  representatives  of,  37 

Relation  of  departments  of,  5 

Cannot  subscribe  to  stock  of  another 
company,  43 

Employment  of  engineer  beyond  power 
conferred  by  charter,  43 

Appropriation  exceeded,  44 

Officers  and  agents  must  protect  its  in- 
terests, 84,  85 

COMPENSATION  (see  also  EMPLOYEE  ; 

WAGES)  : 

Of  engineer  or  architect,  211-214,  260 
Of  expert  witness,  recovery,  296 
For  injuries  while  riding  on  a  pass,  264 

COMPETITION  (see  also  BIDS  AND  BID- 
DERS) : 

Necessary  when  law  requires  it,  148 
Required  in  compliance  with  statute,  140 
Required  by  statute  or  charter  must  ex- 
tend to  all  work,  53,  148 
Public  must  have  full  benefit  of,  140 
Secured  by  inviting  proposals,  132 
Contracts  to  stifle,  are  void,  81,  82,  148 

COMPETITIVE  PLANS  (see  also  EM- 
PLOYMENT OF  ENGINEER)  : 
Lost  by  express  company,  215 
Rights  of  competitors,  212-214 

COMPLETION  OF  WORK  : 

Time  of  completion  may  be  changed  by 
parol  agreement,  130 

COMPROMISE  : 

Of  a  claim,  consideration  for  new  prom- 
ise, 69,  131 

CONCEALMENT  OF  INJURY  : 

Effect  011  statute  of  limitations,  119-121 

CONDITIONAL  ACCEPTANCE  : 

Of  a  bid,  written  contract  to  be  executed, 
183 

CONDITIONS  AND  STIPULATIONS: 

In  regard  to  performance  and  completion 

of  work,  165,  166 
Should  be  enforced,  413 

CONDITIONS  PRECEDENT  : 

To  an  appeal  to  the  courts,  86 

CONDUCT : 

Of  expert  on  witness  stand,  282 

CONFIDENTIAL  AGENT: 

Engineer  or  architect  is  not,  219A 


310 


INDEX. 


References  are  to  sections. 


CONGRESS: 
May  ratify  invalid  contract,  46 

CONSENT  OF  SURETIES : 

To  accompany  proposal  for  work,  169 
In  form  of  proposal,  185,  art.  191 

CONSIDERATION      (see     also      CON- 
TRACTS) : 

Defined  and  described,  60 

As  regards  the  consideration,  61 

Essential  to  a  valid  contract,  60 

Obligation  of  a  contract  cannot  be  as- 
sumed for  nothing,  60 

Must  be  something  of  value,  63 

Must  be  legally  equivalent  to  promise, 
60,  63 

Must  be  commensurate  with  the  obliga- 
tion assumed,  63 

Adequacy  of  consideration,  63 

It  must  not  be  wanting,  65 

Promises  without  consideration  are  not 
binding,  64-67 

Failure  of  the  consideration,  65 

An  obligation  to  a  party  cannot  be  a 
consideration  for  a  new  promise  to  the 
same  party,  66 

Must  be  something  more  than  a  moral 
obligation,  64 

Must  be  lawful,  and  in  keeping  with 
public  policy,  72 

Must  be  fully  performed  to  make  prom- 
ise binding,  70 

Must  be  present,  or  coexistent  with  prom- 
ise, 67 

Promise  for  a  past  or  future  considera- 
tion is  not  binding,  67 

Mutual  promises  are  present,  67 

Of  promises  of  subscribers  to  a  project,  62 

Must  come  from  promisee,  68 

Must  come  from  party  to  whom  promise 
is  made,  68 

Compared  with  subject-matter,  71 

Good  in  part,  and  in  part  bad,  70 

In  part  lawful  and  the  rest  unlawful,  70 

Void  or  unlawful,  70 

For  changes  and  new  terms  of  a  con- 
tract, 69,  131 

Subsequent  changes  must  be  for  a,  69, 
131 

Necessary  when  contract  is  performed 
on  one  side,  to  a  rescission  or  change 
in  its  terms,  69,  131 

Mutual  promises,  for  changes  and  modi- 
fications in  written  contract,  131 

Misrepresentation  and  a  claim  for  extra 
work  a  consideration  for  a  promise  to 
pay  extra  compensation,  66,  69 

Obligation    not    enforceable    because  of 
infancy,  bankruptcy,  or  statute  of  lim- 
itations as  a  consideration,  64 
CONSPIRACIES  : 

To  prevent  bidding,  141 

To  prevent  competition,  148 


CONSTRUCTION     CONTRACT 

also  CONTRACTS)  : 
Mode  of  entering  into,  92,  132 


(see 


CONSTRUCTION  OF  CONTRACT  (see 

also  INTERPRETATION  OF  CONTRACT)  : 
Is  for  the  court,  126 
Evidence  to  assist  in,  123-126 
Lawful  construction  will  be  adopted,  70 

CONTEMPT  OF  COURT  : 

What  is  contempt,  259A 

Physician  in,  for  refusing  to  testify  with- 

out extra  pay,  296-298 
Purging  it,  how  to  do  it,  259A 

CONTENTS,  pages  vii-xiv 

CONTRACTS  (see  also  AGREEMENTS  ; 
ASSIGNMENTS  ;  BIDS  AND  BIDDERS  ; 
CHANGES  ;  CONDITIONS  ;  CONTRACT 
STIPULATIONS  ;  OFFER  AND  ACCEPT- 
ANCE) : 
Validity  determined  by  laws  of  what 

place,  58 

Essential  elements  of  : 
Parties  to  contract,  1-56 
Between  members  of  trades-union,  82 
Considerations  of,  60-70  (see  also  CON- 

SIDERATION). 
Mutual  assent  an  essential  element  of  a 

contract,    88-97    (see   also   MUTUAL 

ASSENT). 

Unilateral  and  bilateral,  67 
Bilateral;  a  promise  for  a  promise,  93 
Subject-matter  of  the  contract,  71-87 
Delivery  of  contract  completes  it,  2,  59 
Date  of  contract,  its  importance,  59 
Made  on  Sunday,  59  (see  also  SUNDAY). 
Execution  of  : 

Mode  of  entering  into  construction  con- 

tracts, 132 
Should  contain  all  terms  of  agreement, 

122 

By  mail  or  telegraph,  95 
Indeterminate,  and  statute  of  frauds, 

125 
Completion   of,  postponed  until  draft 

of  written  contract,  91,  97,  183 
Execution  must  meet  charter  require- 

ments, 44,  138,  148 
Void  or  voidable  : 

Against  public  policy,  71-87 

To  do  an  unlawful  act,  71-87 

Must  not  be  contrary  to  statute  laws, 

75 
Must  be  to  perform  a  lawful   act  or 

undertaking,  71-87 
Must  not  facilitate  the  doing  of  an  un- 

lawful act,  75 
To  commit  a  crime  or  misdemeanor, 

77 
Must  not  be  in  contravention   of  the 

law  or  of  judicial  morals,  71-87 


INDEX. 


311 


References  are  to  sections. 


CONTRACTS — Continued. 
Void  or  voidable — Continued. 

To  erect  structures  in  violation  of  laws 
or  ordinances,  76 

Must  not  be  to  invade  property  riglits, 
76 

Must  not  require  contractor  to  commit 
a  trespass,  76 

Must  not  require  the  obstruction  of  a 
public  way  or  stream,  76 

Must  not  require  contractor  to  main- 
tain a  nuisance,  76 

Knowledge  that  subject-matter  of  con- 
tract is  unlawful  will  prevent  recov- 
ery for  performance  or  breach,  75 

Must  not  have  a  tendency  to  injure  or 
defraud  the  government,  75 

In  violation  of  immigration,  labor,  or 
excise  law,  78 

Must  not  be  inconsistent  with  duties 
and  obligations  of  parties,  84 

To  refrain  from  working  for  a  com- 
pany's interest  to  the  advantage  of 
others  is  void,  81 

By  employee  to  exercise  his  influence 
adverse  to  employer's  interest,  85 

To  not  resort  to  courts  for  redress,  86 

Inalienable  right  not  the  subject  of 
contracts,  85 

Releasing  railroad,  express,  and  tele- 
graph companies  from  liability  for 
injuries,  86 

To  stifle  prosecution,  74 

For  the  perversion  of  the  courts,  74 

To  influence  public  officers,  73,  74 

For  public  favor  or  personal  influence 
with  public  officers,  73,  74 

For  private  influence  to  secure  certain 
legislation,  73,  74 

To  share  fees  of  a  public  office  with 
an  opposing  candidate,  73 

In  restraint  of  trade,  81 

Object  must  not  be  to  create  a  monop- 
oly, 81 

Not  to  compete  are  void,  81 

To"  control  prices  independent  of  sup- 
ply and  demand,  81 

That  promote  gambling,  83 

Immoral  contracts  are  void,  87 

For  immoral  or  indecent  purposes,  87 

In  restraint  of  marriage,  87 

In  violation  of  Sabbath  laws,  59,  79 

Void  in  part  only,  159 

Valid,  are  not  affected  by  later  act  of 
legislature,  142,  144  (see  also  RATI- 
FICATION). 

Void  for  irregularities,  are  not  made 
valid  by  subsequently  rectifying  the 
illegal  acts,  141 

Illegal  contracts  for  public  work  can 
not  be  legalized  by  public  officers,  141 

Illegal  contracts  may  be  ratified  by 
legislature,  46,  141,  142 


CONTRACTS—  Continued. 
To  lowest  bidder  : 

Corporation's  acts  beyond  its  powers, 
35,  39-41 

Of  a  public  organization  must  be 
within  powers  conferred  by  charter, 
constitution  or  act  of  incorporation, 
138 

Repairs  should  not  be  included  at 
times,  157 

With  party  having  exclusive  franchise, 
when  required  that  they  be  let  to 
lowest  bidder,  164 

Must  be  awarded  in  the  manner  re- 
quired by  law,  44,  138 

What  is  an  award,  183 

Courts  will  enjoin  illegal  award  of, 
177,  178 

Act  of  awarding  contract  is  discretion- 
ary, 171,  172,  173 

Must  be  in  same  terms  as  bid,  140 

Must  include  all  the  work  advertised, 
157 

Bidders  for,  must  be  furnished  infor- 
mation in  regard  thereto,  154 

When  quantities  and  character  of  work 
cannot  be  determined,  157 

Execution  of,  certified  check  to  insure, 
167-169 

Not  to  compete  or  bid,  81,  82,  148 

To  stifle  competition,  81,  82,  148 

By  bidders,  to   share  profits  of  con 

tract,  not  enforceable,  148 
Interpretation    (see  also   INTERPRETA- 
TION) : 

Intention  of  parties  controls,  127 

If  intention  be  clear,  no  explanations 
will  be  received,  122 

Interpretation  of,  is  for  the  court,  126 

Terms  are  not  for  witness  to  explain,  126 

Interpretation  which  is  legal  should 
be  adopted,  127 

Proof  of  terms  of  contract,  98 

Parol  evidence  to  assist,  124-126 

Ambiguous,  made  clear  by  parol  evi- 
dence, 122-126 

Condition  of  parties  shown  by  parol 
evidence  to  explain  terms  of,  123 

Written  contracts  cannot  be  changed 
by  evidence  of  previous  oral  under- 
standings, conversations,  etc.,  122 

Independent  oral  agreements,  130 

Written  contracts  cannot  be  changed 
by  parol  evidence,  122 

Void  or  illegal,  a  subject  of  parol  evi- 
dence, 124-127. 

Right  to  make  changes  reserved,  158 
Defining  engineer's    powers,     see   also 

ENGINEER  OR  ARCHITECT. 
Statutes  limiting  (see  also  STATUTE  OF 
FRAUDS;  STATUTE  OF  LIMITATIONS): 

Promises  to  pay  contractors'  debts, 
within  statute  of  frauds,  when,  111 


312 


INDEX. 


^References  are  to  sections. 


CONTRACTS — Continued. 
Statutes  limiting — Continued. 

Should  always  be  in  writing,  101 

Required  to  be  in  writing  by  statute 
of  frauds,  98-111 

Performance  of  which  is  impossible 
within  a  year,  103-105,  201 

Executed,  not  within  statute  of  frauds, 
104 

To  take  down  and  re-erect  a  structure 
not  within  statute  of  frauds,  101 

For  goods,  materials,  and  merchandise 
for  more  than  $50,  98-102 

For  goods  or  materials  to  be  manufac- 
tured, 101 

For  an  interest  in  lands  within  statute 
of  frauds,  106 

For  creation,  assignment,  and  surren- 
der of  estates  in  land,  109 

To  pay  the  debt  of  another  within  the 

statute  of  frauds,  110 
Of  employment  (see  also  EMPLOYEE)  : 

What  is  a  performance  of  contract  of 
service,  213 

Repairs  to  a  building,  10 

Construction  work,  9,  10 

Coat  to  order,  10 

Lighthouse,  9,  13 

Author  of  book,  10,  n. 

Terminate  with  death  of  contractor,  11 

For  services  of  engineer,  200-259 

Undertaking  on  part  of  employee,  211 

Determines  rights  of  employee  to  his 

inventions  and  designs,  219 
Implied  in  law : 

To  prevent  unjust  enrichment,  67,  108 

None  implied  against  public  corpora- 
tion, 143 

None,  when  the  law  forbids  the  con- 
tract, 52,  53,  138 

Implied  contracts  to  pay  for  work  used 
or  appropriated, would  defeat  object 
of  statute  requiring  competition,  53 

Implied  by  law,  when  services  are  so- 
licited and  accepted,  211 
CONTRACT   FORMS: 

The  introduction,  3 
CONTRACTOR  : 

Right  to  recover   depending  upon    acts 

of  public  officers,  54 

No  recompense   for  his  labors,  prepar- 
ing bids,  plans,  and  specifications  for 

private  work,  186. 
His  rights  : 

When  he  is  the  lowest  bidder,  174, 175 

Under  orders   by  individual  members 

of  the  board,  39 
His  liability  : 

As  a  non-judicial  officer  for  negligence 
in  doing  duty,  as  in  making  repairs, 
254 

For  mistakes  of,  when  he  was  to  lay 
out  his  own  work,  239 


CONTRACTOR—  Continued. 
Party    to   contract,     determined  by    his 

own  act,  50 
Consideration  of  promise  of  subscribers 

to  pay,  62 
Bound  by  his  contract  though  estimates 

are  wrong,  241 
Action  against  engineer  for  want  of  care 

and  skill,  246-248 
Must  take  notice : 

Must  see  that  law  is  complied  with,  52 
Precautions  to  be  exercised,  55,  138 
Must     keep    informed    in    regard    to 

work,  52 

Must  watch  proceedings  of  congress, 
legislature  council,  or  commissioners. 
re  the  work,  52 

Must  watch  appropriation,  44-47 
Must  take  notice  of  powers  of  agents 

and  public  officers,  33,  35,  38,  44 
His  means  of  obtaining  information  of 
work  and  parties,  41 

CONTRACT  STIPULATIONS  (see  also- 

SUBJECT  OF  STIPULATION)  : 
Form  of  introduction,  3 
Designation  or  description  of  parties,  4 
Agency,  power  of  agent  described,  29 
Binding  personal  representatives,  7 
Re  alterations  and  extra  work  : 

Modified  or  rescinded  by  subsequent 
agreement,  69,  131 

COPY    (see    also     EVIDENCE  ;    EXPERT 

WITNESS)  . 
Enlarged  by  photography,  280 

COPYING  DESIGNS,    ETC.: 

Law   forbids,  unless  sold  or  published, 
216 

COPYRIGHT  : 

What  is  the  subject  of,  216-218 
Necessary  to   protect   published  works, 

216 

Of  plans  and  drawings,  216-218 
Of  map,  etc.,  made  from  materials  col- 
lected by  others,  222 
Of  photographs,  2l9 

COPYRIGHT  LAWS  : 

Have  not  destroyed  author's  incorporeal 
rights  in  his  creations,  216 

CORPORATION,  see  COMPANY. 

COST  OF  PUBLIC  WORK  : 

If  it  exceeds  a  certain  amount  must  be 
let  to  lowest  bidder,  160,  161 

COUNCIL  : 

Individual  members,  acts  of,  39 
Members  must  act  as  a  unit,  39,  40,  48 

COUNSELOR  : 

Expert  to  attorney,  295 


INDEX. 


31S 


References  are  to  sections. 


COUNTY  : 

Sometimes    held    liable    under   implied 
contract,  143 

COUNTY  OFFICERS: 

Compared  with  municipal,  252 
Liability  of,  for  lack  of  skill,  251 

COURTS  (see  also  EVIDENCE  ;    INJUNC- 
TION ;  MANDAMUS)  : 

Contracts  to  pervert,  74 
Contracts  not  to  resort  to  courts,  86 
Cannot  by  agreement  be  ousted  of  juris- 
diction, 86 

Will  take  notice  of  notorious  facts,  292A 
May  have  candid  expert  opinion,  273 
Have  little  confidence  in  experts,  269 
Expert  should  gain  confidence  of,  282 
Expert  must  consider  the  understanding 
of  court  and  jury,  269 

COVENANT,  see  also  CONDITION  ;  CON- 
TRACT STIPULATIONS. 

CREATIONS  : 

Made  from  materials  collected  by  others, 

222      - 
Made  from  materials  collected_while  an 

employee,  221 

CROSS-EXAMINATION  : 

Of  an  expert  is  largely  within  the   dis- 
cretion of  trial  court,  289 

CUSTOM  AND  USAGE  (see  also  CON- 
TRACTS) : 

To  define  duties  of  professional  engineer 
or  architect,  211 

To  show  authority  to  employ  assistants, 
243 

To  establish   charges  of  architect   held 
unreasonable,  214 

That  plans  belong  to  architect,  215 

Parol  evidence  of,  received,  123 

Of  what  place  controls,  58 
DAMAGES : 

For  unskillful  performance  of  work,  235 

Measure  of,  for  loss  of  competitive  plans 
by  express  company,  215 

Suffered  by  employee  for  wrongful  dis- 
charge, 209 

For  injuries  while  riding  on  a  pass,  264 
DATE  OF  CONTRACT: 

Time  of  entering  into  contract,  59 

Importance  of  date,  59 

Date  omitted,  may  be  proved,  59 
DAYS,  see  also  TIME  OF  PERFORMANCE 

OR  COMPLETION. 
DAY'S   LABOR: 

Hours  in,  fixed  by  statute,  136,  144 

DEATH  (see  also  EXECUTOR  AND  ADMIN- 
ISTRATOR ;  REPRESENTATIVES)  : 
Representatives  after,  7 
Terminates  contract  for  personal  skill,  11 
Of  contractor  discharges  surety,  21 


DEBTS  : 

Contract  to  pay  the  debt  of  another,  110 
DECORATIONS  : 

Copyright  of,  by  artist,  216 
DEFECTIVE  MATERIALS  (see  also 

MATERIALS)  : 
Liability  of  engineers,  237 
Liability  of  engineer  for  not  detecting, 

238-240 
Joint  liability  of  engineer  and  contractor,. 

240 
DEFECTS  : 

Fraudulent  concealment  of,  120,  121 
Contractor's  liability  therefor,  120 
Concealed  until  statutory  period  of  limi- 
tations has  passed,  119-121 
DESCRIPTION  : 

Of  public   work  required  to  be  let  to 

lowest  bidder,  154 

DESIGNS    (see   also  COPYRIGHT  ;    EM- 
PLOYEE;  PLANS  AND  SPECIFICATIONS): 
Property  in,  of  artist,  215-225 
Embodied    by    plans  are   protected    by 

law,  216 
Exhibited  in  public,  rights  of  author  or 

artist,  216 

Rights  of  purchaser  in,  217 
Made  by  employee,  222 
Rights  of  employee  in,  219-225 
Should  be  protected  by  copyright,  216 
Of  structures,  right  to  copyright,  216- 

218 
DETRIMENT  : 

Detriment  of   promisee  a  consideration 

of  a  contract,  61 
DIAGRAMS  : 

May  be  used  by  expert  witness,  292 
DISCHARGE  OF  CONTRACT 

Law  of  what  place  governs,  58 
DISCHARGE    OF  SURETY: 

By  alterations,  20,  22 
DISCHARGE   OR  DISMISSAL: 
Of  employee  (see  also  CONTRACT  ;  EM- 
PLOYEE;  EMPLOYMENT): 
What  is  or  is  not,  208 
Of  an  employee,  202-210 
What  will  justify,  202-210 
If  the  employee  be  incompetent,  204 
For  misrepresentation  as  to  skill,  etc., 

206 

For  willful  disobedience,  203 
For  habitual  negligence,  205 
For  disclosing  business  of  employer, 

204       * 

Offense  condoned,  207 
Measure  of  damages  recoverable,  209 
Due  to  combinations,  conspiracies,  or 

boycotts,  204 

He  may  have  an  action  against,  who 
maliciously  procures  his  discharge, 
204 


INDEX. 


^References  are  to  sections. 


DISCOVERY  OF  FRAUD: 

Clues  should  be  followed  up,  119 
Of  public  officers  : 

Must  be  exercised  in  good  faith,  171, 

173 

In  awarding  contract,  138 
To  ignore  bidder,  who  is  in  arrears  to 

city,  147 
Exercised,  must  be  based  upon  facts, 

173 
Is  gone  when  manner  of  doing  a  thing 

is  once  adopted,  138 
Not  to  be  controlled,  176-179,  244-259 

DISCRETIONARY   DUTIES  : 

Liability  for  misconduct  in  the  perform- 
ance of,  179,  244-249 
May  not  be  delegated,  173 

DISMISSAL,  see  also  DISCHARGE. 

DISOBEDIENCE  : 

That  will  justify  the  dismissal  of  an  em- 
ployee, 203 

DISABILITIES  : 

Of  persons  to  contract,  23-28 
Social,  to  contracting,  27 
Political,  to  contract,  27 
Which  prevent  operation  of   statute   of 
limitations,  114 

DRUNKARDS : 

Contracts  of,  25 

DRUNKENNESS  : 

A  cause  for  dismissing  an  employee,  204 

DURESS  : 

Parties  to  contract  under  duress,  28 
Angry  and  profane  words  not  duress,  28 
Parol  evidence  of,  in  written   contract. 
129 

DUTIES  : 

Of  engineer  or  architect  (see  also  EN- 
GINEER'S DUTIES)  : 
Under  a  professional  engagement,  211, 

226-237 
As  public  officers  they  are  presumed  to 

do  their  duty,  40 

Of  employee  to  notify  employer,  249A 
Of  owner  : 

To  do  no  act  imminently  dangerous  to 

others,  242 

ELEMENTS  OF  CONTRACT  (see  also 
CONTRACTS)  : 

Four  essentials,  1 

Parties,  1-56  (see  also  PARTIES). 

The  consideration,  60-70  (see  also  CON- 
SIDERATION). 

Subject-matter,  71-87  (see  also  SUBJECT-  , 
MATTER). 

Mutual  assent,  90-97  (see  also  MUTUAL 
ASSENT). 


EMBANKMENT,      see     also     EARTH- 
WORKS. 

EMPLOYEE   (see  also  CONRACTS  ;  EM- 
PLOYMENT ;     ENGINEER    OR    ARCHI- 
TECT): 
Duties  and  Rights  : 

Rights  of,  in  designs  and  inventions, 
219-225 

Rights  of,  to  literary  productions,  219 

Right  to  things  created  outside  of 
office  hours,  220 

Cannot  copyright  charts  made  from 
Government  surveys,  though  con- 
ducted by  himself,  222 

His  right  to  his  inventions,  223-225 

In  making  inventions  should  assume 
the  cost.  225 

His  duty  to  give  notice,  249A 

Statute  giving  right  to  wages  when 
discharged,  144 

Misunderstanding  as  to  wages  to  be 
paid,  90 

Overtime,  when  statute  fixes  hours  in 
a  day,  210 

Term  of  service  and  statute  of  frauds, 
105 

Contracts  for  service  for  one  year  or 
more  should  be  in  writing,  103-105, 
201 

Citizen  on  public  works,  136,  144 

Can  have  no  secret  interest  in  em- 
ployer's business,  85 

Contract  to  divulge  employer's  busi- 
ness, 42,  85 

Of  state,  liable  for  negligence,  254 
Discharged  (see  also  DISCHARGE:)  : 

Measure  of  damages  recoverable,  209 

Wrongfully  dismissed  may  recover 
reasonable  value  of  services,  209 

Discharged  is  bound  to  seek  only  like 
employment,  209 

What  he  should  do,  209 

Employer  must  show  that  employee 
could  have  had  other  employment  to 
reduce  amount  of  recovery,  209 

Must  possess  degree  of  care  and  skill 
alleged,  226-237 

Recovery  for  extra  skill  and  service, 
225 

Determination  of  skill,  230 

Disrespectful  conduct  will  justify  dis- 
missal, 203 

Need  not  put  up  with  indignities,  203 

Criminal  act  of,  a  just  cause  for  dis- 
missal, 204 

EMPLOYER  (see  also  OWNER)  : 
May  be  the  true  inventor,  223 

EMPLOYMENT  : 

Engineer  or  Architect : 

In  regard  to,  200-259 
What  is  or  is  not,  212 
What  is  proof  of,  214 


INDEX. 


315 


References  are  to  sections. 


EMPLOYMENT—  Continued. 

Engineer  or  Architect— Continued. 
Engagements  for  a  salary  and  a  part 
of  profits  of  business  not  a  partner- 
ship, 201 

What  is  not  an  engagement,  213 
As  a  professional  man,  258 
In  a  professional  capacity,  211-214 
Similar   to   that  of  other  professional 

men,  226 

Undertaking  of,  in  a  professional  ca- 
pacity, 211 

Often  very  indefinite,  211 
In  connection  with   competitive  plans 

submitted,  212-214 

Conditional  on  acceptance  of  plans,  212 
In  a  judicial  capacity,  244-249 
Character   of  work   changed,  without 

consent  of  employee,  208 
By  unauthorized  persons,  214 
Beyond   power    conferred  by    charter 

upon  company,  43 
By  two  persons  jointly,  214 
May  not  delegate  duties,  205 
As  an  expert  witness,  267-301 
His  right  to  designs   and  inventions, 

219 

Bight  to  inventions  made,  223-225 
What  is  a  performance  of  contract  of 

service,  213 

Breach  of  contract  of,  201-210 
Recovery  for  services,  214 
Recovery  for  services  of  assistants,  214 
Who  is  liable  for  value  of  services,  214 
No  recovery  for  extra  services  volun- 
tarily rendered,  210 
Term  of  service,  201 
By  the  year,  month,  or  day,  201 
Period  adopted  for  estimation  of  wages, 

201 

Contracts   for  service  not   to  be  per- 
formed within  a  year,  105,  201 
Service  by  month  and  continuous  for 

several  years  is  one  hiring,  201 
Term  of  service  indefinite,  201 
Yearly   contract,  long-continued  serv- 
ice, 201 

Agreement  to  employ  permanently,  201 
Steady  and  permanent  service,  201 
For  life  or  during  ability  to  perform, 

201 
Term  of  service  so  long  as  works  are 

kept  running,  201 
Dismissal   or    discharge,  202-210  (see 

also  DISCHARGE). 
What  will  justify   a  discharge,  202- 

210 

Overburdened    with    work,    and    dis- 
missed for  lack  of  control,  206 
What  amounts  to  a  dismissal,  208 
A  demand  for  the  resignation  of,  is  a 

discharge,  208 
Dismissal  for  incapacity,  206 


EMPLOYMENT— Continued. 

Engineer  or  Architect — Continued. 
Incompetency  or  incapacity,  206 
His  liability  for  lack  of  care  and  skill, 

226-243 

Misrepresentation   as  to  skill  and  ex- 
perience, 206 
If   careless    and    incompetent,    he    is 

liable  to  employer,  228-243 
Illness   and   absence  a  cause   for  dis- 
charge, 205 

Absence  a  cause  for  dismissal,  205 
Gross  moral  misconduct,  204 
Misconduct  overlooked  and  condoned, 

207 

Waiver  of  right  to  dismiss,  207 
Recovery  of   wages  when  wrongfully 

dismissed,  209 
Damages    recoverable  •  for  discharge, 

209 

Duty  when   discharged  to  seek  other 
employment,  209 

ENGAGEMENT  (see  also  EMPLOYEE  ; 

EMPLOYMENT)  : 

Of  engineer  or  architect,  200-259 
Of  professional  man,  implies  capacity  to 

do  what  is  undertaken,  226-237 

ENGINEER  OR  ARCHITECT  (see 
also  AGENT  ;  EMPLOYMENT  ;  EXPERT 
WITNESS): 

When  an  agent  or  servant,  234 
Is  not  a  confidential  agent,  249A 
Is  trusted  agent  of  employer,  42 
An  agent,  his   knowledge  attributed  to 

owner,  249A 

May  owe  a  double  duty  to  his  employer, 
as  a  referee  and  as  a  professional  man, 
249 

Liability  when  a  public  officer,  250-259 
Acts  ratified  or  adopted,  34 
As  politicians  and  lobbyists,  301 
Judicial  status  of,  246 
Must  not  act  fraudulently,  247 
Liable  to  owner  for  fraud  and  collusion 

with  contractor,  247,  248 
Evidence  of  collusion,  149 
Not  liable  to  a  suit  by  contractor  for  re- 
fusing his  certificate,  246 
Can  have  no  secret  interests  in  contract, 

42 
Must  be  competent,  careful,  and  skillful, 

226-243 

Must  have  ordinary  skill  and  care,  232 
Must  give  careful  superintendence,  239, 

249 

His  undertaking  when  he  solicits  or  ac- 
cepts an  engagement,  231 
For  inspection  and  defective  design,  237 
For  omissions  and  defects  made  by  con- 
tractor, 239,  240 

To  employer  for  neglect  or  unrikillful- 
ness,  242 


316 


INDEX. 


References  are  to  sections.* 


ENGINEER  OR   ARCHITECT— Con. 

For  injuries  resulting  from  adoption  of 
insufficient  plans,  242 

Cannot  recover  for  services  when  he  has 
been  careless  and  unskillful,  238 

To  owner  for  failure  to  make  investiga- 
tions, 238 

For  acts  of  assistants,  243 

To  his  employer,  but  not  to  others,  248 

To  owner,  with  contractor  or  builder,  240 

For  cost  of  materials  obtained  through 
misrepresentations,  256 

For  many  acts  or  omission  when  his 
functions  are  judicial,  244-246 

When  his  duties  are  judicial  or  discre- 
tionary, 179,  244-249A 

For  want  of  care  and  skill  when  actino- 
judicially,  246 

Is  under  contract  with  owner  to  use  care 
and  skill,  and  his  judicial  status  will 
not  relieve  him,  248 

For  misconduct  of  contractor,  240 

To  contractor  for  fraud,  collusion,  and 
bad  faith,  247,  248 

When  codefendant  with  owner  and 
charged  with  fraud,  must  reply  to 
charges,  247 

For  contempt  for  disobeying  court,  259A 

When  under  an  injunction,  259A 

As  a  witness  : 

On  the  witness  stand,  249A 
Qualifications  as   an    expert    witness, 

284-291 
As  experts,  not   needed  to  determine 

certain  questions,  285 
A   witness  with  knowledge   of   facts, 

288 

As  an  expert  defending  hasty  and  im- 
prudent opinions,  268 
Justice  requires  him  to  take  witness- 
stand,  as  an  expert  at  times,  274 
No  special  privileges  as  a  witness..  249A 
Examples  that  are  questions  for  expert 

testimony,  291 
Should   nqt    volunteer  information  to 

bidders  for  public  work,  155 
Canvassing  among  bidders,  140 
As  an  independent  contractor,  243 
Property  in  his  creations,  217 
Right  to  copyright  of  plans,  216-218 
His  property  in   plans   and   specifica- 
tions he  has  supplied,  215,  216-222 
Claims  to  a  copyright  of  his  plans,  218 

Employment  of  (see  also  EMPLOYMENT): 
His  engagement  or  employment,  200- 

259 

As  a  professional  man,  226-237 
Means  of  collecting  his  pay,  260 
Right  to  a  lien  for  services,  261,  262 
Entitled  to  a  lien  for  superintendence, 

262 

His  relations  to  his  work  and  right  to 
a  lien,  262 


ENGINEER  OR   ARCHITECT— Con. 

His  rights  under  stockholders'  liability 

acts,  263 
Injured  while  riding  on  a  pass,  264 

ENGINEER'S  AUTHORITY  : 

May  not  order  extras  without  authority 
241 

To  employ  assistants  on  account  of  com- 
pany, 243 

ENGINEER'S  DUTY  : 

To   report   conditions  and  things  to  his 

employer,  249A 

To  guard  against  defects,  239,  240 
In  regard  to  personal   inspection  before 

rendering  certificate,  249 
Not  to  be  determined  by  a  jury,  249 
Presumption  that  he  has  done  it,  240 
As  an  employee  not  excused  because  of 

his  judicial  status,  248,  249 

ENGINEER'S       FRAUD      (see      also 

FRAUD)  : 
Evidence  of  fraud,  54 

ENGINEER'S  INTEREST  : 

Can  have  no  secret  interest  in  contract,  85 

ENGINEER'S  KNOWLEDGE  : 

Imputed  to  his  employer,  249A 

ENGINEER'S     LIABILITY    (see    also 

ENGINEER  OR  ARCHITECT)  : 
For  misconduct  when  period  of  limita- 
tions is  passed,  121 

ENGINEER'S     SERVICES    (see    also 

EMPLOYMENT  OF  ENGINEER)  : 
No  recovery  for,  if  employment  be  ultra 
vires,  43 

ENRICHMENT : 

To  prevent  unjust  enrichment,  contract 
to  pay  is  implied  by  law,  108 

ENTIRE   CONTRACTS,  see  also  CON- 
TRACTS ;  CONTRACTOR. 

ESTATES  IN  LAND  : 

Contracts  for  the  creation,  assignment, 
and  surrender  of,  are  within  statute  of 
frauds,  109 

ESTIMATE  (see  also  ENGINEER'S  ESTI- 
MATE) : 
A  random  guess,  evidence  of  fraud,  149 

EVADING  SUMMONS: 

For  the  statutory  period  of  limitations, 
115 

EVIDENCE,  see  also  EXPERT  WITNESS. 

EXAMPLES  : 

Of  expert  testimony,  291 


INDEX. 


317 


References  are  to  sections. 


EXCLUSIVE     RIGHTS    OR    FRAN- 
CHISES : 

Contracts  by  public  officer  must  not 
grant,  81 

EXECUTED  CONTRACTS  : 

Not  within  statute  of  frauds,  104 

EXECUTION    OF    CONTRACT,      see 
CONTRACTS. 

EXECUTOR  OR  ADMINISTRATOR : 

Is  the  representative  of  a  person  after 
death  on  all  contracts,  8 

Rights  and  liability  under  contract  of 
decedent,  8 

Bound  to  complete  contract,  8,  9,  10,  11 

Takes  benefits  and  burdens,  9 

May  complete  old  contracts  but  cannot 
make  new  ones,  12 

May  make  himself  liable,  12 

Contracts  for  personal  skill  of  con- 
tractor, 10 

Named  in  the  contract,  11 

If  named,  contract  not  personal,  11 

Liability  for  torts  of  decedent,  12 

EXHIBIT  : 

Use  of  by  experts  in  court,  292,  293 
Of   designs   by    author,    loss    of    rights 
thereby,  216 

EXPERIMENTS  : 

Expert  witness  may  employ,  292 

EXPERT   TESTIMONY: 

When  will  it  be  admitted,  284 

Does  not  require  other  like  testimony  to 
meet  it,  289 

Weight  and  value,  for  the  jury  to  de- 
termine, 289,  290 

As  to  professional  methods  and  standard 
authors,  291 

Must  be  from  recollection,  not  from 
memoranda,  277-280 

Legislation  needed  to  improve,  301 

EXPERT    WITNESS    (see    also    WIT- 
NESS) : 

Defined  and  described,  291 

Who  may  be  an  expert,  291 

Engineer  or  architect,  as,  267-301 

Treatment  of  subject,  267 

The  consultation,  268-274 

Esteem  in  which  they  are  held  by 
Bench  and  Bar,  270 

Views  of  learned  text-book  writers  re, 
270 

A  champion  of  his  client,  272 

Bias   and    prejudice   attributed  to  him, 

Accused  of  having  a  biased  and  warped 
270 
judgment,  270,  271, 

Little  help  to  a  court,  260 

Expected  to  be  impartial,  272 

Is  a  hired  advocate,  272 


EXPERT   WITNESS— Continued. 
Candid  opinion  may  be  had,  273 
His  duty  to   seek  to  improve  the  situa- 
tion, 301 

Behavior  of,  in  court,  282,  284 
May  take  time  before  answering,  268 
Is  justified  in  taking  stand,  274 
Cannot  decide  question  at  issue,  directlv 

290 
Cannot   determine  questions  which   are 

for  the  jury  to  decide,  285,  286,  290 
What  questions  he  may  be  asked,  291 
Should  seek  confidence  of  court,  282 
Qualifications  of,  283,  291 
Competency     of,    determined    by    Trial 

court,  283 
Privileges   of,    are  determined  by  trial 

court,  282,  283 
May  be    asked   hypothetical   questions, 

287,  288 

Required  to  answer  categorically,  274 

Conduct  upon  the  stand,  294 

May  employ  practical  illustrations  and 
experiments,  292 

Use  of  memoranda  and  copies,  278 

May  use  books,  charts,  or  prepared  mem- 
oranda to  refresh  memory,  277-280 

Use  of  photographs,  279,  280 

His  right  to  use  models  and  make  tests 
rests  with  the  trial  court,  293 

Use  of  books  on  stand,  276-278 

May  adopt  statements  of  book  as  his 
own,  276-278 

May  be  questioned  re  books,  276 

When  he  may  testify,  284-291 

Need  not  have  been  a  specialist  in  the 
subject-matter,  291 

Must  confine  his  testimony  to  subject  in 
which  he  is  skilled,  291 

Must  have  regard  for  the  understanding 
of  his  audience,  269 

Position  in  trying  to  sustain  untruths, 
268 

Not  a  delightful  position,  273 

Must  undergo  inquisition,  299 

His  knowledge,  character,  and  experi- 
ence may  be  gone  into,  299 

His  preparation  for  the  stand,  275-281 

Must  inform  himself,  275 

Should  take  time  to  investigate,  268 

To  carefully  inspect  scene  of  contro- 
versy, 279 

Must  possess  himself  of  all  the  facts, 
279 

Should  make  personal  examination  of 
subject-matter,  288 

When  he  has  knowledge  of  facts  of  case, 

288,  297,  298 

Should  be  prepared  to  explain  his  con- 
clusions, 281 

Should  be  prepared  to  convince  others, 
275 

Should  fortify  his  opinions,  281 


318 


INDEX. 


References  are  to  sections. 


EXPERT   WITNESS— Continued. 

Need  not  prove  certain  things,  of  which 
courts  take  notice,  292A 

Not  required  to  determine  many  ques- 
tions, 285-291 

His  advice  to  fellow  experts,  294 

As  counselor  and  adviser  to  attorney, 
IV,  295-298 

Recovery  for  services  as  adviser  to  at- 
torney, 298 

Recovery  for  services,  296 

Right  to  extra  pay  for  opinion,  296 

His  time  and  services  should  not  be  re- 
quired without  compensation,  296 

His  opinion  his  property,  296 

If  no  extra  pay,  then  no  extra  prepara- 
tion, 390 

In  criminal  and  civil  cases,  296,  297 

Sometimes  compelled  to  testify  in  crim- 
inal cases,  297,  298 

If  he  knows  facts,  he  must  testify,  298 

EXPRESS  PROMISE  : 

Starts  statute  of  limitations  anew,  118 

EXPRESSIONS  : 

Made  clear  by  parol  evidence,  122-126 
Releases  surety,  20  (see  also  SURETY). 

EXTRA  SERVICES  : 

Rendered  by  employee,  no  recovery 
without  express  agreement,  210 

EXTRA   WORK   OR  EXTRAS  : 

Stipulations  to  avoid  : 

Subsequent  promises  to  pay  for,  must 
be  for  a  consideration,  131 

Promise  to  pay  extra  compensation  for 
work   included   in   contract,    is   not 
binding,  66 
Instances  : 

When  appropriation  is  insufficient,  47 

When  work  is  required  to  be  let  to 
lowest  bidder,  53 

Value  of,  under  contract  required  to 
go  to  lowest  bidder  not  recoverable, 
157,  158 

Cannot  be  ordered  under  contract  re- 
quired to  be  given  to  lowest  bidder, 
157,  158 

Not  named  in  advertisement  for  pro- 
posals for  public  work  cannot  be 
included  in  contract,  157 

PACTS : 

Versus  opinions  in  court,  284 

Of  which  courts  will  take  notice,  292A 

Known  to  expert  witness,  288 

FIDUCIARY  (see   also  AGENT  ;    ENGI- 
NEER OR  ARCHITECT)  : 
Acts    must   not     be    inconsistent     with 
duties,  84,  85 


FIDUCIARY—  Continued. 

Can  have  no  interests  in  conflict  with 
those  of  his  principal,  42 

Can  have  no  personal  interest  in  con- 
tract, 85 

Engineer  to  company,  42 

FIRE    HOSE  : 

Contract  for  to  lowest  bidder,  161 
Must  be  advertised,  161 

FIREWORKS  : 

Need  not  be  advertised,  164 

FIRMS ; 

As  parties  to  contract,  5 

FOREIGNERS   : 

Employment  of,  on  public  work  pro- 
hibited, 144 

FORFEITURES  : 

Certified  check  of  bidder,  168 

FORMS  : 

Of  Advertisement  for  proposals,  133- 
135 

Of  contract,  see  also  CONTRACT  FORMS. 

Of  notice  : 

To  bidders  in  regard  to  work,  145 
Recommended  tor  proposal,  151 

Of  proposal  for  public  work,  185 

FOUNDATIONS  : 

Imperfect,  liability  of  engineer  or  archi- 
tect, 237 
Failure  to  bore  for  and  investigate,  238 

FRANCHISES  : 

Sale  of  must  be  for  cash,  139 

FRAUD  (see  also  ENGINEER  or  ARCHI- 
TECT) : 

Parol  evidence  of,  in  written  contract, 
129 

FRAUD    AND    COLLUSION: 

Of  engineer  or  architect : 

What  is  good  evidence  of,  149 

FRAUDS,    STATUTE    OF,     see  STAT- 
UTE OF  FRAUDS,  98-111. 

FRAUDULENT  WORK : 

On  part  of  contractor,  what  is?  120 

FREE   PASS: 

Compensation  for  injuries  while  riding 
upon,  264 

So  called,  are  given  for  some  considera- 
tion, 265 

Without  a  waiver  of  damages  from  neg- 
ligence, 266 

Statute  laws  forbidding  the  use  of,  by 
public  officers,  266 

FURNISHED  ON  GROUND: 

Meaning  of  words,  271 


INDEX. 


References  are  to  sections. 


GARBAGE!: 

Removal  of,  need  not  be  advertised,  161. 
164 

GARBAGE    CREMATORY: 

Patented,  in  bids  for  public  works,  164 

GAMBLING   CONTRACTS: 

Against  public  policy,  83 
Money  lent  for  gambling,  83 

GENERAL   INSTRUCTION: 

For  bidders  for  public  works,  136 

GENERAL   MANAGER : 

Right  to  a  lien  for  service,  261,  262 

GOODS  : 

Sale  of,  under  statute  of  frauds,  98-102 
To  be  manufactured  : 

Sale  of,  under  statute  of  frauds,  101 

GOVERNMENT  : 

Is  exempt  from  operation  of  statute  of 
limitations,  116 

GUARANTY : 

Of  perfection  of  plans,  or  of  safety   of 

structure,  not  implied,  '229,  258 
Exacted  from  lowest  bidder,  157 

HARDSHIPS  (see  also  CONTRACTOR)  : 
Of  bidder  to  be  preferred  to  a  rule  which 

would  injure  the  public,  157 
Will  not  relieve  from  statute  of  limita- 
tions, 115 

HEIR: 

Is  not  the  representative  of  a  contractor,  8 

HIRING  (see  also  EMPLOYMENT,  ETC.)  : 

Of  engineer  or  architect,  200-259 

HOLIDAYS,  see  SUNDAYS. 

HOURS  (see  also  DAY  ;  WAGES)  : 

In  a  day's  work  fixed  by  statute,  136, 
144 

HUSBAND  AND  WIFE  (see  also  PAR- 
TIES) : 

Contracts  between,  26 

Promise  by  one  to  pay  debts  of  the  other, 
110,  111 

As  agent  for  one  another,  26,  38 

HYPOTHETICAL  QUESTIONS  (see 
also  ENGINEER  or  ARCHITECT  ;  EX- 
PERT WITNESS)  : 

May  be  asked  of  experts,  286,  287,  288 
Propriety  of,  determined  by  trial  court, 

283 

Should  embody  all  the  facts  287,  288 
Cannot  be  based  upon  facts  not  shown, 

288 
May  be  based  upon  disputed  facts,  287, 

288 

Must  be  based  upon  facts  deducible  from 
evidence,  287,  288 


IDIOCY,  INFANCY,  INSANITY: 

Disabilities  to  operation  of  statute  of 
limitations,  114 

IDIOT  : 

Contracts  of,  are  voidable,  25 

ILLUSTRATIONS  : 

Expert  witness  may  make  practical,  292 

IMMORAL  CONTRACTS,  see  CON- 
TRACTS, 87 

IMPLIED  CONTRACTS  (see  also  CON- 
TRACTS IMPLIED  IN  LAW): 
No  implied  contract,  when  the  law  ex- 
pressly forbids  one,  52,  53 

INCAPACITY : 

To  contract,  23-28 

INCOMPETENCY,  see  ENGINEER. 

INCORPOREAL  PROPERTY  (see  also 
COPYRIGHT  ;  EMPLOYEE  ;  INVENTION): 

In  architectural  and  engineering  de- 
signs, 216-225 

Protected  only  so  long  as  author  retains 
control  of  it,  216 

Rights  of  purchaser  in,  217 

INDEBTEDNESS  : 

Limit  of,  of  a  city,  45-46 

INEBRIATES  : 

Contracts  of,  25 

INFANTS  (see  also  PARTIES): 
Capacity  to  contract,  24 
Contracts  are  voidable,  not  void,  24 
Necessaries,  liability  for,  24 
As  agent,  may  be  one,  24 

INFORMAL  BIDS  (see  also  BIDS)  . 
Failure  to  name  sureties,  169 

INFORMATION  FOR  BIDDERS: 

To  prepare  bids,  133-140 

As  to  work,  should  be  full,  41,  154 

As  to  powers  of  parties  and  their  agents, 

41 
Additional,     volunteered    by    engineer, 

155 

INJUNCTION  : 

Must  be  honestly  obeyed,  259A 
Engineer  must  obey,  and   be  respectful 

to  court,  259A 
Situation  of  engineer,  259A 
Acting  under  advice  of  counsel,  259A 
When   court   has  exceeded  its  powers, 

259A 

INSPECTION: 

An  excuse  with  contractor  for  defective 
work,  120 


320 


INDEX. 


"References  are  to  sections. 


INSPECTION— Continued. 

Should    prevent    material    errors      and 

omissions,  239,  240 
Liability  of  engineer  for,  237 
Cannot  be  excused  by  showing  presence 

of  owner,  238 

INSPECTOR  (see  also  ENGINEER  OR  AR- 
CHITECT) : 

His  knowledge  is  owner's,  249  A 
Held  liable  for  non-performance  of  duty, 
239 

INSTANCES  : 

Of  questions  not  for  experts,  285,  286 

Of  invention  between  employer  and  em- 
ployee, 225 

Of  engineer's  failure  to  do  his  duty,  237- 
240 

Of  care  and  skill  required  of  engineers, 
237 

Of  mandatnus  and  injunction,  259A 

INSTRUCTIONS  AND  CONDITIONS: 
For  bidders  : 

Should  give  full  information,  139 
Form  for  public  works,  136,  145,  151, 
165,  167,  170 

INSTRUMENTS,   WRITTEN  (see  also 
WRITTEN  INSTRUMENTS)  : 

INTENTION  OF  PARTIES  : 

Will  prevail  when  not  contrary  to  pub- 
lic policy,  127 
In  publication  of  designs,  216 

INTEREST  OF  ENGINEER  : 

Public  officer  in  contract  may  invalidate 
it,  42 

INTEREST  IN  LAND  : 

Contract  for  work  on  land,  or  for  im- 
provement thereof,  not  within  statute 
of  frauds,  106 

Contracts  relating  to  use  of  lands,  and 
statute  of  frauds,  106 

Special  agreements  in  regard  to,  107 

INTERPRETATION  OF  CONTRACT 

(see  also  CONTRACTS,   MEANING  AND 
INTENTION)  : 
Evidence  to  assist  in,  123-126 

INTERPRETERS  : 

Cannot  be  compelled  to  serve  without 
compensation,  296 

INTOXICATION  : 

Contracts  made  while  intoxicated,  25 

INVENTION  (see  also  PATENT): 
Defined  and  described,  224 
Who  is  the  inventor,  224,  225 
What  does  it  consist  of,  224 
Ownership  of,  215-225 
Instances  of,  by  employee,  225 
Rights  of  employee  in  his  own,  219,  225 


INVENTION—  Continued. 

By  employee,  use  of  employer's  materials 

entitles  him  to  use  it,  225 
Power  to  invent  may  be  the  subject  of 
sale,  223 

INVENTOR : 

Not  always  natural-born,  223 
May  sell  his  inventions  before  they  are 
made,  219 

INVITATION: 

To  bidders,  form  of  advertisement/ 132, 
133-135 

IRREGULARITIES  (see  also   AWARD  ; 

BIDS  ;  BIDDERS  ;  CONTRACTS)  : 
In  requirements  of  statute  or  charter  by 

which  work  is  authorized,  139 
In  letting  work  to  lowest  bidder,  54 

JOINED  : 

Plans  and  specifications  to  contract,  214- 
220 

JOINT  PARTIES : 

Liability  as  employers,  214 

JUDGES,  see  also  COURTS. 

JUDGMENT  : 

Must  be  exercised  in  good  faith,  171,  173 

JUDICIAL  ACTS  (see  also  MINISTERIAL): 
Distinguished  from  ministerial,  180 
Of  public  officers   must  be  exercised  in 

good  faith,  171,  173 
Liability    for  improper  performance  of, 

179,  244-259 

JUDICIAL  DUTIES  : 

Liability  for  misconduct  in  the  perform- 
ance of,  244-249 

JUDICIAL  NOTICE  : 

Of  well-known  facts  by  court,  292A 

JUDICIAL  OFFICERS  : 

Distinguished  from  judges  of  courts,  245 

246 
Engineer  and  architect  are,  246 

JUDICIAL  POWERS  : 

Defined  and  explained,  244 
Of  engineer  and  architect,  246 

JURISDICTION  : 

Of  courts  over  parties  to  contract,  58 

JURY  : 

Visiting  scene  of  controversy,  292,  293 

If  they  can  fully  comprehend  case,  ex- 
pert evidence  not  admissible,  284,  290 

Determines  weight  of  expert  testimony, 
289 

Experts  cannot  decide  matters  which  are 
for  them  to  decide,  286,  290 

Expert  must  consider  understanding  of, 
269 


INDEX. 


321 


References  are  to  sections. 


KNOWLEDGE  : 

Of  an  order  of  the  court,  259A 

Of  members  of  council  imputed  to  citv 

249A 

If  expert  lias,  he  must  testify,  298 
Required  of  an  expert,  291 
Of  engineer  imputed   to   his   employer 

249A 
Of  engineer's  acts,  a  ratification  thereof 

249A 

LABOR  LAWS  AND  LIMITATIONS: 

Must  be  complied  with,  144 
Constitutionality  of,  in  some  states,  144 
Legality  of  many  is  doubtful,  144 

LARCENY : 

Of  plans  by  architect,  215 

LAWS  AND  ORDINANCES: 

Of  what  place  controls,  57,  58 

Law  of  place  where  parties  reside  gov- 
erns, 58 

Law  of  place  where  contract  is  to  be  per- 
formed controls,  58 

Forbidding  public  officers  from  accepting 
or  using  passes,  266 

LAWYERS  : 

Poor  opinion  of  experts,  270 
Sometimes  make  mistakes,  271 

LEGALITY  : 

Representations  as  to,  of  a  contract,  129 

LEGISLATION : 

Needed  to  improve  expert  testimony,  301 

LEGISLATURE  : 

May  ratify  illegal  contracts,  46,  141 
May  ratify  contracts  ultra  vires  a  corpo- 
ration, 142 

LETTER  : 

Acceptance  of  offer  by  letter,  95 
Proper  mailing  of,  is  evidence  of  receipt, 
95 

LEVELS,  see  LINES  AND  LEVELS. 

LEX  LOCI: 

Law  of  what  place  governs,  58 

What  custom  or  usage  controls,  57,  58 

LIABILITY  : 

Of  engineer  or  architect  : 

For  lack  of  care  and  skill,  226-243 

For  not  detecting  defects  and  omis- 
sions, etc.,  238-240 

To  owner  for  mistakes,  238-240 

For  acts  of  assistants,  243 

As  an  agent,  for  misconduct,  234 

Limited  to  employer,  242 

In  a  professional  capacity,  226-243,  258 

As  a  public  officer,  250-259 

Of  engineer  and  contractor  jointly,  240 

When  his  functions  are  judicial,  244- 
249 

For  discretionary  acts,  176-180 


LIABILITY—  Continued. 

Of  owner,  in  damages  (see  OWNER)  :: 
For  misconduct  of  engineer,  241 
For  underestimate  of  architect,  241 
Of  owner,  -when  a  city  : 

For  acts  of  its  officers  in  rejecting  low- 
est bid,  178,  179 
Of   public    officers    (see    also    PUBLIC 

OFFICERS)  : 

On  contracts  executed,  255  ' 
For  rejecting  lowest  bid,  176-180 
For  acts  of  assistants,  253 
Mistake  of  city  engineer,  258 

LIEN: 

Right  of  engineer  or  architect  to,  261,, 

262 

None  for  preparing  plans,  261,  262 
Superintendents,  general   managers,  and' 

cooks  not  entitled  to,  261 

LIEN  LAWS  . 

Objects  to  be  attained,  262 
Constitutionality  of,  attacked,  262 

LIMITATION,     STATUTE     OF,    112- 
121,  see  STATUTE  OF  LIMITATIONS. 

LIMIT  OF  COST  : 

Above  which,  work  must  be  advertised, 
160,  161 

LIMIT  OF  INDEBTEDNESS  : 

Must  not  be  exceeded,  44-47 
Indebtedness  includes  what,  47 

LOCATION  : 

Of  railroad  lines  or  depots,  for  personal" 
profit,  forbidden  by  public  policy,  81 

LUMP  SUM; 

When  quantities  and  prices  are  given. 
160 

LOWEST    BIDDER  (see  also  BIDS  AND.' 

BIDDERS): 
For  Public  Work: 

Party  to  contract,  50 

Charters  or  acts  requiring  work  to  Be- 
let  to  lowest  bidder  are  imperative, 
51,  138 

Work  ' '  may  "  be  let  to,  construed  to 
mean  "  shall  "  be  let  to  him,  138 

Requirement  that  he  shall  have  con- 
tract for  works,  137 

Right  to  contract  for  public  work,  176— 
178 

Entitled  to  the  award  of  contract,  176 

May  not  reject  his  bid,  140 

Work  divided  between  him  and  an- 
other, 177 

May  prevent  illegal  awarding  of  con- 
tract to  another  by  injunction,  177, 
178 


INDEX. 


References  are  to  sections. 


iOWEST  BIDDER—  Continued. 
For  Public  Work — Continued. 

When  can  he  require  the  contract  to 
be  awarded  to  himself,  176 

Power  to  determine  who  is  responsible 
is  discretionary,  172,  173,  245 

"  Responsible  "  has  reference  to  other 
qualifications  than  pecuniary,  173 

Record  as  a  contractor  and  builder  may 
be  investigated,  173 

Hecovery  of  profits,  when  contract  was 
awarded  to  another,  179 

Evidence  that  bid  accepted  was  not  the 
lowest,  174 

Lower  offer  made  after  bids  have  been 
opened,  171 

Irregularities  in  awarding  contract,  54 

Work  under  contract  contrary  to  law, 
no  recovery  can  be  had,  53 

Conspiracies  to  prevent  competition, 
141 

Work  required  to  be  let  to  lowest 
bidder,  51 

What  work  must  be  let  to  him,  161 

What  contracts  must  be  advertised  and 
let  to  lowest  bidder,  138 

'Contracts  for  a  sum  exceeding  a  cer- 
tain amount  to  be  let  to,  160,  161 

To  determine,  there  must  be  a  standard 
for  comparison  of  bids,  139 

Requires  a  preliminary  estimate  to  be 
made,  53 

Advertisement  should  include  all  the 
work,  53 

Should  include  nothing  in  his  bid  but 
what  is  called  for  in  advertisement, 
155 

M&y  be  required  to  take  certain  mate- 
rials at  a  valuation,  162 

Right  to  make  changes  in  his  work  re- 
served, 158 

Should  undertake  extra  work  with 
caution,  157,  158 

Bids  reconsidered  after  having  been 
rejected,  174,  175 

Failure  to  accept  bid  in  time  stipu- 
lated, 174 

Fails  to  enter  into  contract,  175 

Abandons  the  work,  174,  175 

Should  have  notice  that  his  bid  is  low- 
est, 183 

Allowed  to  withdraw  his  bid,  175 

Right  to  reject  any  bid,  171,  172 

His  contract  is  assignable,  15,  148 
For  private  work,  186-188 

Rights  are  subjects  of  express  agree- 
ment, 186-188 

Implied   agreement  that  contract  will 

be  given  to  him,  188 
-MANDAMUS  (see  also  INJUNCTION)  : 
To  require   that   a    contract   for   public 

work  be   awarded  to    lowest    bidder, 

176-178 
Position  of  engineer  under,  259A 


MANUFACTURER : 

Is  liable  to  purchaser  only,  for  defects, 
242 

MAPS: 

For  use  of  expert  witness,  276-280 

MAPS  AND  CHARTS  (see  also  PLANS)  : 

Use  of,  by  expert  witness,  279,  292 

Subject  of  copyright,  210-218 

Copied  from  others,  222 

Made  from  surveys  and  materials  col- 
lected while  in  employ  of  another,  221 

Made  from  surveys  for  the  government, 
copyright  of,  222 

MARRIAGE  : 

Contracts  in  consideration  of  marriage 
within  statute  of  frauds,  111 

A  disability  to  operation  of  statute  of 
limitations,  114 

MARRIED  WOMEN  : 

Parties  to  a  contract,  26 

MATERIALS  : 

Purchase  or  sale  cf  : 

Under  statute  of  frauds,  98-102 
To  two  different  parties,  97 
Patented  for  public  work,  163,  164 
Bid  to  furnish  whwn  ordered,  184 
Collected  while  in  the  service  of  an- 
other and  incident  to  it,  22 

MATERIAL  MEN  : 

Promises  to,  by  owner,  to  pay  contrac- 
tor's debts  must  be  in  writing,  110,  111 

MEANING  OF  CONTRACT  (see  also 
CONSTRUCTION  ;  INTENTION  ;  INTER- 
PRETATION) : 

Is  for  the  court  to  determine,  126 
Witness  cannot  testify  in  regard  to,  126 

MEMORANDA  : 

Of  dates,  quantities,  and  calculations  for 
use  of  expert  witness,  277-280 

Must  have  been  made  at  time  of  occur- 
rence, 277-280 

Lost,  and  copies  used  by  witness,  278 

Use  of  by  witness,  277-280 

MEMORANDUM  OF  SALE  : 

What  is  a  sufficient  memorandum,  102 

MINISTERIAL  DUTIES  (see  also  EN- 
GINEER ;  JUDICIAL  ;  PUBLIC  OFFI- 
CERS) : 

Distinguished  from  judicial,  244-249 
Liability  of  public  officers  for  neglect  in 
performing,  180 

MISCONDUCT  : 

Of  employee,  that  will  justify  a  dis- 
charge, 202,  210 


INDEX. 


32$ 


R«ference»  are  to  sections. 


MISREPRESENTATIONS  : 

As  to  legal  effect  of  contract  terms,  122 
As  to  legality  of  an  instrument,  129 
As  to  value,  merits,  etc.,  of  an  inven- 
tion, 129 

In  soliciting  subscriptions,  129 
Of  an  employee  to  secure  employment ; 

liability  therefor,  235 
Liability  of  public  officers  for,  256 
Claims  of,  a   consideration   for  promise 
for  extra  pay,  69 

MISTAKES: 

Of  engineer  or  architect  : 

Are  not  frequent,  271 

Not  confined  to  industrial  world,  271 
Of  parties  : 

In  terms  of  contract,  88-97 

As  to  terms  of  contract  must  be  rea- 
sonable, to  excuse  party  from  his 
contract  obligation,  91 

As  to  terms  of  contract  must  be  shown 
conclusively,  90 

As  to  subject-matter  of  contract,  90,  91 

As  to  price  of  subject-matter,  90 

As  to  quality  of  subject-matter  of  con- 
tract, 90 

As  to  persons  or  parties  to  contract,  90 

As  to  wages  to  be  paid  employee,  90 
Of  public  officer  : 

In  advertisement  for  proposals,  135 

In  awarding  contract  not  according 
to  proposals,  90 

His  liability  therefor,  32,  35,  36 

MISUNDERSTANDING  (see  also  MIS- 
TAKE) : 
Of  parties  as  to  terms  of  contract,  88-90 

MODELS  : 

Brought  into  court,  292,  293 
MONOPOLY : 

Contract  must  not  create,  81 
Articles,    in    bids  for  public  work,   the 
manufacture  of  which  is  a  monopoly, 
163,  164 
Exclusive  rights  in  public  franchises  not 

allowed,  81 
MORAL  OBLIGATION  : 

A  consideration  of  a  contract,  64 
MORE  OR  LESS  : 

In  a  contract  to  furnish  materials,  184 
MUNICIPAL     CORPORATION,     see 

CJTY  ; 

MUTUAL  ASSENT  (see  also  MISTAKE)  : 
Must  be  evidenced  by  overt  acts,  89 
Must  consist  of  physical  as  well  as  men- 
tal act,  89 

Must  exist  when  contract  is  made,  88-97 
Manner  of  arriving  at,  92 
Misunderstanding  must  be  proven,  91 
Postponed    until   draft    of   written   con- 
tract, 91,  97,  183 
In  executed  contracts,  90 


MUTUAL  PROMISES  : 

Consideration  one  for  the  other,  whem 
changes  are  made  in  written  contract, 
131 

MUTUAL  UNDERSTANDING  : 

Essential  to  a  binding  contract,  88-91 

NECESSARIES  (see  also  INFANTE)  : 
Contracts  for,  23-26 

NEEDLE,  see  MAGNETIC  NEEDLE  : 

NEGLIGENCE :     (see    also    AGENTS  ; 

ENGINEER)  : 
Of  parties  to  contract : 

Party  asserting  must  prove  it,  230 
Of  engineer  or  architect : 

On  the  part  of  agent,  234 

Liability  for  injuries  resulting  to  third 
persons,  242 

As  a  professional  man,  235 

May  prevent  his  recovery  for  services, 
238 

A  cause  for  discharging  employee,  205- 

Not  to  give  notice  of  any  fact  affect- 
ing the  performance  of  engineer's^ 
duty,  249 A 

Of  a  carrier's  servants,  waiver  of  dam- 
ages resulting,  266 

NEW  PROMISE  : 

Interrupts  running  of  statute  of  limita- 
tion, 118 

NOTES  (see  also  SIGNATURE)  : 
Given  to  induce  bidder  not  to  bid  om 
public  work  are  invalid,  148 

NORTH,  see  MAGNETIC  NEEDLE. 

NOTICE  (see  also  ADVERTISEMENT)  * 
Form  of  notice,  145 
Sometimes  is   notice  to   his    employer*. 

249A 
Letter  properly  mailed  is  presumed  to> 

have  been  received,  95 
What  is  a  proper  publication  of  a  notice,, 

135,  139 

To  be  posted  in  conspicuous  place,  135 
When  required,  must  be  given,  135,  13^ 
Of  things,  to  be  given  to  employer  by 

agent  or  engineer,  249A 
Of  award  of  contract  to  bidder,  183 
To  bidders,  as  regards  the  notice,  135 
Of  an  injunction,  250 A 

OATH  AS  TO  TRUTH  : 

Of  statements  in  a  proposal,  145,  150 

Form  of,  in  proposal,  185,  art.  21 
OBSCURE  CONTRACTS  : 

Explained  by  parol  evidence,  123,  124 
OFFER  AND  ACCEPTANCE  (seealso> 
ACCEPTANCE  OF  OFFER,  94-97;  REVO- 
CATION OF  OFFER,  97) : 

Together  make  a  binding  contract,  92,  97 

What  is  an  offer,  93 

An  offer  is  a  conditional  promise,  93 


324 


INDEX. 


JReferences  are  to  sections. 


OFFER  AND  ACCEPTANCE— Con. 

Conditional  offer,  condition  must  be  per- 
formed, 94 

*f  Will  you  or  would  you  take  ..."  not 
an  offer,  93 

An  offer  may  be  revoked,  97 

Offer  of  reward  for  service  to  be  ren- 
dered, 94 

Revocation  of  offer  when  consideration  is 
partly  performed,  94 

Destroyed  by  death  of  offeree,  94 

What  constitutes  an  acceptance,  94 

Acceptance  must  be  in  terms  of  offer, 
93-97 

Acceptance  need  not  be  communicated  to 
offerer,  94 

Acceptance  of  offer  by  letter  or  message, 
95 

Acceptance,  how  expressed,  94 

OFFICE  HOURS  : 

Work  done  outside  of,  by  employee,  220 

OFFICERS  (see  also  AGENTS  ;  PUBLIC 
i  OFFICERS)  : 

Acts  must  not  be  against  interests  of 
their  company,  84 

Of  company  are  not  its  servants,  263 

OFFICIAL  NEWSPAPER : 

Designation  of,  for  advertisements,  135 

OFFSET  : 

Of  owner  against  engineer's  claims  for 
unskillfulness,  238 

OMISSIONS  : 

Supplied  by  parol  evidence,  123 

OPENING  OF  BIDS: 

Bidders  should  be  invited,  183 

Not  necessary  to  award  contract  at,  183 

OPINIONS  (see  also  EXPERT  WITNESS)  : 
Not  generally  admissible  as  evidence,  284 
Of  an  expert,  giving  of,  268 
Witness  entitled  to  pay  for,  when  ?  296 

OPTION  (see  also   REVOCATION  OF  OF- 
FER) : 
On  materials  for  time  specified,  97 

ORAL  AGREEMENTS  (see  also  PAROL 

AGREEMENTS)  : 
Independent  oral  agreements,  130 

ORDERS  (see  also  AGENTS  ;  ENGINEERS  ; 

PUBLIC  OFFICERS)  : 
By  couimitteemen  and  engineer,  39 
Ratification  of  unauthorized,  34 

OUTSIDE  WORK  (see  also  EXTRAS)  : 
By  employee,  rights  of  employer,  220 

OVERTIME  : 

When  hours  in  a  day  are  fixed  by  statute, 
210 


OWNER'S  LIABILITY  : 

To  pay  claims  against  contractor,  should 
be  in  writing,  110,  111 

For  damages  suffered  from  architect's  in- 
attention against  sums  due  for  serv- 
ices, 238 

Cannot  complain  if  he  has  knowingly 
employed  an  unskillful  engineer,  228 

OWNERSHIP  OF  PLANS,  ETC.,  see 
INCORPOREAL  PROPERTY,  216-225 

PAROL  AGREEMENTS  : 

To  be  subsequently  embodied  in  a  writ- 
ten contract,  91,  97,  183 

To  rescind  or  change  written  agreement, 
122-131 

To  pay  the  debts  of  another,  110,  111 

To  rescind  specialty  should  have  a  con- 
sideration, 69,  131 

May  be  consideration  for  written  agree- 
ment and  vice  versa,  130 

PAROL  CHANGES : 

Of  contract  terms,  69,  121-131 

Of  written  contract,  evidence  of,  130 

PAROL  EVIDENCE  (see  also  EVI- 
DENCE) : 

Of  written  contract  not  admissible,  122 

To  identify,  describe,  or  explain  a  con- 
tract, 123 

To  explain  obscure  and  ambiguous  con- 
tracts, 124 

When  it  will  be  received  to  explain  writ- 
ten contract,  123-126 

Of  fraud  or  duress  in  written  contracts, 
129 

Not  admissible  to  change  written  con- 
tract, 121-131 

Of  terms  of  written  contract  is  not  ex- 
cluded in  suits  between  strangers 
thereto,  128 

PARTIES  (see  also  CONTRACTS)  : 
To  a  contract : 

Designation  and  description,  4 
There  must  be  two  parties,  5 
As  regards  the  parties,  5 
Only  the  parties  are  bound,  6 
Legal  representatives  of,  7-16 
Persons  members  of  both  parties,  when 

companies  or  firms,  5 
Agent  should  not  be  made  a  party,  30 
Agent's  power  to  contract,  how  con- 
ferred, 56 

Alien  enemy  in  time  of  war,  27 
Artificial  parties  corporate  bodies,  43- 

47 

Bankrupts,  27 

Beneficiaries  under  contract,  17 
Boards,  39 

Committees  and  councils,  39 
Contractor  determined  by  his  own  act, 
50 


INDEX. 


325 


References  are  to  sections. 


PARTIES—  Continued. 
To  a  contract— Continued. 

Director  can  not  be  a  party  to  com- 
pany's contract,  42 

Engineer  a  shareholder  of  one  party,  5 

Guarantor,  parol  promise  by  him,  17 

Husband  and  wife,  26 

Idiots,  inebriates  and  infants,  24,  25 

Idiots,  or  weak-minded  persons,  25 

Third  parties,  laborers  and  material- 
men  under  contractor's  bond  to  pay 
for  labor  and  materials,  17 

Married  women,  26 

Seamen,  27 

Strangers  to  contract,  17 

Subscribers  to  a  project,  49 

Third  parties  to  contract,  17       » 

Third  party,  citizens  when  city  is 
party,  17 

Third  party,  property  owner  on  street, 
17 

Third  party,  purchaser  at  sheriff's 
sale,  17 

Third  parties,  subcontractors,  17 

Third  parties — sureties,  18  (see  also 
SURETY) 

Third  party,  surety  not  liable  to,  19 

Third  parties,  wife  of  contractee,  17 

Disabilities  of  persons,  23-28 

Restriction  excluding  persons  from 
bidding  for  public  work,  147 

Qualifications  required  of  bidder,  146 

Duress  of  either  party,  28 

Must  ascertain  authority  of  public 
agents  at  their  peril,  255 

Domicile  of  parties  given  in  contract, 
57 

Precaution  with  regard  to  on  part  of 
contractor,  55 

Misunderstanding  of  terms  of  contract, 
00 

Consideration  must  pass  between,  68 

PARTNERSHIP  : 

Firm  having  common  partner,  5 
Agreements  for,  by  bidders    for  public 
work,  148 

PASSES  (see  also  FREE  PASS)  : 

Stipulations  endorsed  releasing  company 
from  liability,  86,  264 

PATENTS  (see  also  INVENTION)  : 

Secured  by  employer  when  employee  is 

inventor,  223-225 
Who  is  entitled  as  between  employer  and 

employee,  223-225 

PATENTED  ARTICLES  : 

Competitive  bidding  for  in  public  work, 

163,  164 

A  pump  for  public  works,  164 
Pavements  for  public  works,  164 
Lathing  for  public  work,  164 


PAY  (see  also  MONEY  ;  WAGES)  : 
Wages  at  certain  intervals  required  by 
law,  136,  144 

PENALTIES  : 

Forfeiture  of  certified  check  of  bidder, 
168 

PERFORMANCE : 

Of  service  by  engineer,  213 

PERILOUS  : 

For  contractor  to  contract  with  unauthor- 
_ized  parties,  43-55 

PERIOD  (see  also  STATUTE  OF  LIMITA- 
TIONS) : 

Of  advertising  for  bids,  135 
Of  limitations,  112-121 

PERSONAL  SERVICE  : 

Fireworks,  contract  to  make,  164 
Light  house,  contract  to  build,  13,  164 

PERSONAL  SKILL,  see  ENGINEEB  OB 
ARCHITECT. 

PHOTOGRAPHS  : 

Some  of  the  uses  of,  280 
As  evidence,  280 

Advantages  of  in  a  trial,  279,  280 
To  enlarge  minute  objects,  280 
Deceptions  contained  in,  280 
The  subject  of  copyright,  218 
Publication  of  without  permission  of  the 
person,  218 

PHYSICIAN : 

His  contract  of  employment,  211-214 
As  an  expert  witness,  295-301 

PICTURE  : 

Rights  of  purchaser  in,  217 

PIRACY  : 

Of  books  and  charts,  222 

FLANS  AND  SPECIFICATIONS   (see 

also     DRAWINGS  ;     SPECIFICATIONS  ; 

PLANS)  : 

A  part  of  a  bid,  188 
Identified  by  parol  evidence,  123 
Ownership  and  control  of,  215-225 
Ownership  of  plans,  etc.,  215,  216-222 
Possession  of  disputed,  215 
Lost  by  common  carrier,  215 
Designs  embodied  are  protected  by  law, 

216 
Copying  or  using  without  permission  of 

author,  216-222 

Copyright  of  by  author,  216-218 
Prepared  and  submitted  in  competition, 

recovery  for,  212-214 
No  lien  for  labor  in  preparing,   261,  262 

POOR  WORK : 

Concealed  by  fraud,  its  effect  on  statute 
of  limitations,  119, 121 


326 


INDEX. 


References  are  to  sections. 


POSITION  : 

Of  a  public  officer,  250 

POSSESSION  : 
Of  plans  : 

During  construction  of  works,  215 
After  completion  of  works,  215 

PRACTICAL  TESTS  : 

By  expert  witness  in  court,  292,  293 

PRECAUTIONS : 

To  be  taken  by  contractor  in  undertak- 
ing public  work,  55,  138 

PREFACE,  see  page  iii 

PRELIMINARY  ESTIMATES  (see 
also  ENGINEER'S  ESTIMATE  ;  ESTI- 
MATE) : 

Should    be   made   to  enable   bidders  to 
bid,  53 

PREPARATION  : 

Of  expert,  none  can  be  required  without 

extra  pay,  300 
By  expert  witness, "for  the  witness  stand, 

279 

PRESIDENT  (see  also  PARTIES)  : 
Party  to  a  contract,  30,  32,  38 
Can  have  no  interest  in  company's  con- 
tract, 43 

PRESUMPTION  : 

That  engineer  or  architect  has  done  his 
duty,  240 

PRICE  : 

Extraordinary  in  bids,  54,  149,  156 

PRIOR  CONVERSATIONS : 

^  Merged  in  written  contract,  122-126 

PRIOR  UNDERSTANDINGS  : 

May  not  be  shown  to  vary  terms  of  writ- 
ten contract,  121-131 

PRIVATE  WORK  : 

Lowest  bid  for  work  under,  186-189 
Bidder's  rights  are  such  as  he  has  stip- 
ulated for  by  express  agreement,  187 

PRIVILEGED  COMMUNICATIONS: 

Between  owner  and  architect,  249a 

PRIVILEGES  OF  EXPERT  WIT- 
NESS : 

Determined  by  trial  court,  283 

PRIZE  PLANS  : 

For  best  plans  submitted,  custom  re,  214 
Recovery  for  work   in  preparing,  212- 

214 
Lost  by  express  company,  215 

PROCESSES  : 

Patented,  in  bids  for  public  work,  163, 
164 


PROFESSIONAL    ENGAGEMENT  : 

Of  engineer  or  architect,  211-214 
Requires  of  a  person,  what?  226-237 

PROFESSIONAL  MAN  : 

Must  exercise  care  and  skill,  232 

Must    be   competent    and    skillful    and 

have  due  care,  226 
Is  responsible  for  want  of  ordinary  skill, 

care  and  attention,  229 

PROFESSIONAL  SERVICES  : 

When  charter  requires  that  all  work  be 
advertised,  164 

PROMISES  (see  also  AGREEMENTS  ; 
CONTRACTS  ;  CONSIDERATION)  : 

Must  be  for  some  consideration,  61 

In  consideration  of  an  act  or  thing  dis- 
tinguished from  promise  for  a  prom- 
ise, 67 

To  pay  extra  compensation  for  work  in- 
cluded in  contract  is  without  a  consid- 
eration, 66 

Must  be  contemporaneous  with  consid- 
eration, 67 

Made  prior  to  written  contract,  121-131 

PROOF  OF  CONTRACT,  see  STATUTE 
OF  FRAUDS,  98-111 ;  STATUTE  OF  LIM- 
ITATIONS, 112-121. 

PROPERTY  RIGHTS  : 

In  plans  and  specifications,  215,  216-222 
In  designs  and  inventions,  215-225 

PROPOSALS  (see  also  BIDS  AND  BID- 
DERS) : 

Acceptance  of,  170,  171,  182-184 
Form  of,  for  public  work,  185 

PUBLICATION  OF  DESIGN : 

What  is  and  is  not,  216 
Destroys  author's  rights  to  exclusive  use 
of  it,  216 

PUBLIC  FUND  : 

Diversion  from  purpose  for  which  they 
were  raised,  46 

PUBLIC  IMPROVEMENT  : 

Parts  of,  must  be  advertised,  161 

"What  is,  and  within  act  requiring  adver- 

tisment  for  bids,  138 

PUBLIC   OFFICER  (see  also  AGENTS; 

ENGINEER  OR  ARCHITECT)  : 
Power  and  liability  of: 

Liability    for  assurances    in    English 

courts,  255 

Liable  for  false  representations,  256 
Liability  on  contracts  improperly  exe- 
cuted, 31,  35 

Not  liable  under  void  contracts,  35 
Liability   upon  contracts   executed   in 

official  capacity,  255 
Should  disclose  the  fact  that  he  is  an 
officer  or  agent,  255 


INDEX. 


327 


References  are  to  sections. 


PUBLIC   OFFICER—  Continued. 
Power  and  liability  of — Continued. 

Signatures  to  notes,  bonds,  etc.,  255 

County  and  municipal  compared,  251, 
252 

Fewer  requirements  than  of  a  profes- 
sional man,  257,  258 

Not  liable  for  blunders,  36,  45 

Liability  of  engineer  as  one,  250-259 

Liability  for  acts  of  assistants,  253 

Willfully  exceeding  powers  are  liable, 
180 

Who  disobey  an  injunction  must  stand 
expense  of  contempt  proceedings, 
2  59  A 

Non- judicial  held  liable  for  negligence, 
254 

Ministerial  acts  of,  180 

Employees  of  state  held  liable  for 
negligence,  254 

Acts  must  not  be  fraudulent,  176 

Evidence  of  fraud  or  collusion  in, 
149  

Power  of  to  determine  lowest  responsi- 
ble Udder,  172 

Power  of  to  determine  good  and  suf- 
ficient surety,  172 

Awarding  contract  for  public  work  to 
another  than  the  lowest  bidder,  176- 
180 

Acts  must  not  be  against  interest  of 
public,  84 

Can  have  no  interest  in  contract  for 
public  work,  42,  148 

Agreements  by,  contrary  to  public 
policy,  73 

Contracts  to  influence  public  officers 
not  binding,  73 

Contracts  ultra  vires  by  public  agents, 
35 

Unauthorized  acts  do  not  bind  princi- 
pal, 35 

Contractor  must  ascertain  powers  of, 
at  his  peril,  35 

May  be  enjoined  from  illegal  acts,  177, 
178 

Acts  cannot  be  controlled  when  they 
are  discretionary,  176-179,  244-259 

May  prescribe  any  reasonable  formal- 
ity for  bidders,  146 

Act  of  awarding  contracts  is  frequently 
discretionary,  171,  172,  173 

Bound  by  discretion  exercised,  138 

In  awarding  contracts,  must  exercise 
good  faitb,  171,  172,  173 

Cannot  permit  alterations  in  proposals, 
181 

Cannot  excuse  default,  and  relieve 
against  forfeiture  of  certified  check, 
168 

Act  of  giving  contract  to  one  not  en- 
titled to  it  a  crime,  179 

Presumed  to  do  their  duty,  40 


PUBLIC  POLICY  (see  also  CONTRACTS)  : 
Contracts  which  are  against  public  pol- 
icy, 71-87 
Defense  of  to  contract  obligations,  87 

PUBLIC  RIGHTS  : 

Not  lost  by  lapse  of  time,  116 

PUBLIC    WAY    (see    also    HIGHWAY  ; 

STREET)  : 
Must  not  be  obstructed,  76 

PUBLIC  WORKS  (see  also  BIDS  and 
BIDDERS  ;  LOWEST  BIDDERS  ;  CON- 
TRACTS) : 

Restrictions  and  regulations  in  contracts 
for,  137 

Must  be  let  to  lowest  bidder,  as  required 
by  law,  cannot  leave  part  of  work  the 
subject  of  a  post-private  agreement, 
157 

Comprised  in  statute  requiring  it  to  be  let 
to  lowest  bidder,  161 

Information  in  regard  to  should  be  fur- 
nished bidders,  154,  157 

Certain  things  to  be  furnished  by  city  or 
state,  162 

Bids  for  cannot  be  withdrawn,  181 

Not  always  required  to  be  advertised  and 
let  to  lowest  bidder,  171 

Precaution  to  be  taken  by  contractor  in 
bidding  for  public  work,  55 

Agreements  between  contractor*  not  to 
bid  against  each  other  for  it,  82 

PUBLISHING  : 

Notices  pursuant  to  law,  135 

PURCHASER  OF  PLANS: 

Right  to  use  and  copy,  217 

PURGING : 

Oneself  of  a  contempt,  259A 

QUALIFICATIONS  : 

Of  an  expert  witness,  283,  291 
Of  bidder  for  public  work,  147 

QUESTIONS  (see  also  EXPERT  WIT- 
NESS) : 

Which  do  not  require  expert  testimony, 
285,  291 

To  be  determined  by  court  or  jury  can- 
not be  asked  witness,  285,  286,  290 

RATIFICATION  (see  also  CONTRACTS)  : 
Of    agent's,    architect's,    and   engineer's 

acts,  34 

Of  invalid  contracts  by  congress  or  legis- 
lature, 46 

READVERTISE,  174,  175,  see  ADVER- 
TISEMENT. 
REASONABLE  ; 

Requirements  of  bidders,  152 

RECEIPTS  AND  PROCESSES  : 

Right  to  between  employer  and  employee, 
219 


328 


INDEX. 


References  are  to  sections. 


RECOVERY : 
Of  employee : 

Of  engineer  or  architect  for  services  in 

preparing  plans  not  used,  212 
For  extra  work,  210 
RECOVERY  BY  CONTRACTOR  (see 

also  CONTRACTOR)  : 
For  extra  work: 

For  extra  services  outside  of  contract, 

210,  225 
When  contract  must  be  let  to  lowest 

bidder,  157,  158 

Under  illegal  or  unauthorized  contract : 
For  work  done  under  an  illegal  con- 
tract, 71-87,  138 
None  for  public  work  under  a  void* 

contract,  138,  143 

When  contract  has  been  awarded  to 
one  not  lowest  bidder,  contrary  to 
law,  143 

Cannot  recover  for  work  and  materials 
furnished  under  a  contract  not  exe- 
cuted according  to  law,  52,  138 
No  recovery  for  work  done  not  pursu- 
ant to  charter  or  statute,  43,  138 
Cannot  recover  when   contract  is  for- 
bidden by  statue  or  charter,  52,  138 
For  work  done  outside  limits  of  com- 
pany's territory,  76 
For    work    done    on    property    of     a 

stranger  to  a  contract,  76 
For  part  performance  : 

For  benefits  conferred  and  to  prevent 

unjust  enrichment,  108,  138 
None  for  labor  preparing  bids  unless 

by  express  agreement,  186-187 
REFRESHING  OF  MEMORY  : 
Of  a  witness  on  the  stand,  277,  278 
By  witness  depends  upon  trial  court,  283 
REGULATIONS  : 

Necessity  for,    in  contracts    for   public 

work,  137 

REJECTION  (see  also  BIDS)  : 
Of  bids  or  proposals  : 

Right  of  public  officers  to  reject  any 

and  all  bids,  171,  174 
May  reject  all  bids,  171-175,  179 
RENTING  OF  OFFICES : 
Need  not  be  advertised,  164 
REPAIRS : 

Liability  of  state  employees  in  making, 

254 

Must  be  advertised,  161 
REPRESENTATIVES  : 
Of  parties  to  contract,  7 
REQUIREMENTS  : 

Imposed  by  public  officers  are  discretion- 
ary acts,  155 

Of  bidders,  propriety  of  certain  ones,  152 
Of  a  professional  man,  256-237 
Of  a  public  officer  less  exacting  than  of  a 
professional  man,  257,  258 


RESCISSION  OF   CONTRACT  : 

Of  an  executed  contract,  requires  a  con. 
sideration,  69 

RESIDENCE  OF  PARTIES  : 

Described  in  contract,  57 

RESIGNATION  OF  EMPLOYEE : 

A  demand  for,  is  a  discharge,  208 

RESPONSIBLE  : 

Significance   of   term   when    applied   to 
lowest  bidder,  173 

RESTRICTIONS  : 
Imposed  on  bidders  : 

Propriety  of  certain,  152 

For  public  work,  146 

For  private  work,  186 

Necessity   for  in  contracts  for  public 
works,  137 

Preventing  certain  persons  from  bid- 
ding, 147 

By  public  officers  are  discretionary,  155 

REVOCATION  : 
Of  award  : 

Of  a  contract,  183  ] 
Of  offer  : 

What  will  effect  it,  97 
Requires  physical  manifestation,  97 
Before    time    for  acceptance   Las  ex- 
pired, 97 

Cannot  be  revoked  after  acceptance,  97 
Must  be  communicated  to  offeree,  97 
When  offer  was  to  remain  open  for  a 

certain  time  specified,  96,  97 
By  selling  to  a  third  party,  97 

RIGHTS  (see  also  CONTRACTS)  : 

Certain  rights  cannot  be  made  subject  of 
contract,  86 

RIGHTS  OF  WAY  : 

Contracts  for  and  statute  of  frauds,  109     • 

SALES  (see  also  STATUTE  OP  FRAUDS)  : 
Statute   of  frauds,  effect  of  on   sale   of 

goods  and  materials,  98-102 
Of  growing  crops  or  timber,  106 
Of  materials,  to  two  different  parties,  97 
Of  franchise,  must  be  for  cash,  139 

SAMPLES  (see  also  BIDS)  : 
Furnished  with  bid  for  public  work  can- 
not  be  used  for  comparing  bids  unless 
they  were  invited,  155 

SEALED  CONTRACTS: 

Changed  by  parol  agreements,  69,  131 

SEALS  : 

Seal  of  principal  or  agent,  32 
Failure  of  sealed  instrument,  simple  con- 
tract sustains,  32 

SEAMEN  : 

Parties  to  contract,  27 

Public  officers,  in  public  work,  148 


INDEX. 


329 


References  are  to  sections. 


SECRET  PROCESSES : 

Employee  prevented  from  using  or  dis- 
closing sucL,  219 

SECRETARY : 

Power  to  contract,  30,  32,  38 

SERVICE  OF  NOTICE  : 

Of   an   order  of  the  court  on  party  en- 
joined, 259A 

SERVICES : 

Gratuitous,  must  be  performed  with  care 

and  skill,  226 
Right  to  a  lien  for,  86 

SIGNATURE  : 

Of  agent  to  contract,  30 

Agent  affixing  title  to  signature,  30 

SKILL  (see  also  CARE  ;  EMPLOYEE)  : 
Determination  of  skill  possessed  by  en- 
gineer, 230 

SPECIALIST   (see    also    EXPERT  WIT- 
NESS) : 
Skill  and  care  required  of,  236 

SPECIALTY,  see  SEALS. 

SPECIFICATIONS  AND  PLANS  (see 
also  PLANS  AND  SPECIFICATIONS,  213- 

252): 

Of  public  work  must  be  made  for  bid- 
ders, 154 
Of  contract  must  be  same  as  for  bids, 

156 
"What  is  good  and  sufficient  for  public 

work   required    to    be    let    to  lowest 

bidder,  154 
Shown   to   bidder  will  bind   contractor, 

155 
Standard  for  competition  adopted  must 

be  followed  strictly,  155 

STANDARD  (see  also  BIDS,  ETC.)  : 
For  comparison  of  bids,  153 
Departure   from,  in  contract  for  public 

work,  fatal  to  its  validity,  156 
When   quantities  and  character  cannot 

be  determined,  157 

STATUTE  LAWS  (see  also  LAWS)  : 
Re  public  works  : 

Must  be  strictly  observed,  143 

That  they  shall  be  let  to  lowest  bidder, 
141 

Includes  what  work,  161 

Use  of  statute  to  escape  a  burdensome 
contract,  148A 

Prostituted  to  purposes  not  intended, 
148A 

Prohibiting  public  officers  from  hav- 
ing any  interest  in  contracts,  148 

Forbidding  the   employment   of  alien 
labor,  136,  144 

Relating  to  carving  and  dressing  stone 
by  citizens  of  the  state,  136,  144 


STATUTE    LAWS—  Continued. 
Re  public  works — Continued. 

Relating  to  hours  of  labor  and  rate  of 

wages,  136,  144 
Prohibiting     importation     of    foreign 

labor,  136,  144 

Forbidding      "  store  -  pay "     to     em- 
ployees,  144 

STATUTE  OF  FRAUDS  : 

Its  application  to  construction  work,  111 
Executed  contracts  not  within  the  stat- 
ute, 104 
What  is  a  sufficient  memorandum  of  a 

sale  to  satisfy,  102 

Sale  of  growing  crops  or  standing  tim- 
ber, 106 

Contract  for  an  interest  in  lands,  106 
Contracts    which   cannot  be    performed 

within  a  year,  103-105,  201 
Contracts   for   creation,    assignment    or 

surrender  of  estates  in  land,  109 
Contracts  to  pay  the  debts  of  others,  110 
Contract  in  consideration   of  marriage, 
111 

STATUTE  OF  LIMITATIONS  : 

Objects  of,  and  reasons  for,  statute,  112 

Does  not  operate  against  the  govern- 
ment, 116 

Agreements  to  waive  its  protection,  117 

Does  not  destroy  contract  obligation,  but 
affects  the  remedy  only,  113 

Disabilities  which  prevent  operation  of 
statute,  114 

Running  of,  interrupted  by  new  prom- 
ise, 118 

Right  of  action,  concealed  by  fraud, 
119-121 

Liability  of  engineer  for  misconduct 
after  statutory  period  has  elapsed,  121 

Rigidly  applied,  regardless  of  hardship, 
115 

STENOGRAPHER'S  NOTES  : 

As  evidence  at  former  trial,  278 

STIPULATIONS    (see    also    CONTRACT 

STIPULATIONS)  : 

That  no  damages  shall  be  claimed  for 
injuries  while  riding  on  a  pass,  264 

STOCKHOLDER  : 

Engineer's  or  architect's  rights  under 
stockholders'  liability  acts,  263 

STORE-PAY  : 

Statute  forbidding,  to  workmen,  144 

STRAW  BIDS: 

Certified  checks  to  prevent,  168,  169 

STREET  CLEANING  ; 

Contract  for  to  lowest  bidder,  must  be 
advertised,  161 


330 


INDEX. 


References  are  to  sections. 


STRUCTURE  (see  also  WORKS)  : 
Contracts  to  erect  structures,  the  use  and 
maintenance   of    which    are    contrary 
to  law  or  ordinance  are  void,  76,  87 

SUBCONTRACTORS  : 

Not  liable  to  owner  for  negligent  work, 
17 

SUBJECT  MATTER  (see  also  CONSID- 
ERATION ;  CONTRACTS  ;  WORKS)  : 
Must  be  lawful,  71-87 
Compared  with  consideration,  71 
Of  controversy,    bringing  it  into  court, 
292,  293 

SUBLETTING,  see  also  ASSIGNMENT. 

SUBMISSION  TO  ARBITRATION,  see 

ARBITRATION. 

SUBSCRIBERS     (see     also     SUBSCRIP- 
TIONS) : 
Liability  is  several  in  the  ordinary  form, 

49 
Partnership,  when,  49 

SUBSCRIPTIONS  : 

Stipulations  and  conditions  imposed,  49 
Not  revocable  at  will  of  subscriber,  49 
Payment  may  be  enforced  by  whom,  49 
Amount  set  opposite  each  name  is  limit 

of  liability,  49 

Consideration  in  subscription  papers,  62 
Misrepresentations  in  soliciting,  129 

SUBSEQUENT  AGREEMENTS  : 

Modifying  or  rescinding  contract,  131 
Must  be  founded  on  a  consideration,  131 

SUCCESS  : 
Not  a  test  of  skill  or  capacity,  229,  258 

SUNDAY  CONTRACTS  : 
Are  invalid  in  most  states,  59,  79,  95 
Contracts  for  employment  to   work  on 

Sunday,  59 

Necessary  work,  what  is,  59 
Contract  drafted^  on  Sunday  but  deliv- 
ered on  week-day,  59,  95 

SUPERINTENDENCE  : 

Should    prevent     material     errors    and 

omissions,  239,  240 

Not  excused  by  presence  of  owner,  238 
Engineer  or  architect  liable  for  neglect 

in,  238 

SUPERINTENDENT    (see  also   ENGI- 
NEER or  ARCHITECT  ;  FOREMAN)  : 
Right  to  a  lien,  261,  262 

SECURITY  : 

Form  of,   prescribed  by  public  officers, 
169 


SURETY  (see  also  ALTERATIONS)  : 

For  faithful  performance,  168,  169' 

Contract  of,  within  statute  of  frauds, 
110,  111 

Assumes  burdens  and  takes  benefits 
when  he  undertakes  to  complete  work, 
18 

Obligations  limited  to  those  assumed  in 
bond,  20 

Liability  to  third  parties,  19 

Liability  to  contractor's  creditors,  19 

Liability  to  subcontractor,  19 

Good  and  sufficient,  required  by  statute, 
139 

To  be  named  in  bid,  169 

Offered  by  bidder,  responsibility  deter- 
mined by  public  officers,  169 

Power  to  determine  good  and  sufficient, 
172 

Refusal  to  qualify  as,  169 

Released  by  unauthorized  changes,  20 

Release  of,  need  not  suffer  injury,  20 

Released  by  overpayments  to  contractor, 
20 

Released  not  by  offsetting  claims,  20 

Released  by  payments  without  engineer's 
certificate,  20 

Released  by  extension  of  time  of  com- 
pletion, 20 

Released  by  changes  in  plans,  20,  21 

Effect  of  alterations  on,  20-22 

Released  by  a  change  of  parties,  by  as- 
signment, death  or  dissolution,  21 

Released  by  change  of  architect,  20 

Released  by  performance  becoming  im- 
possible, 22 

SURVEY : 

As  evidence  in  a  trial,  270 
Mistake  in,  by  city  engineer,  258 

SURVEYOR'S  STAKES  : 

Liability   for  injury  from   falling  over, 

242 

TAXPAYER : 

May  enjoin  performance  of  public  work 
under  an  illegal  contract,  157 

May  restrain  public  officers  from  award- 
ing contract  for  public  work  illegally, 
177,  178 

TELEGRAPH  MESSAGE  : 

Acceptance  of  offered  by,  95 

TERMS  AND  PHRASES  : 

Explained  by  parol  evidence,  122-126 

TERM    OF    SERVICE    (see   also  EM- 

PLOYMENT)  : 
Permanent,  201 

TESTIMONY,  see  also  EXPERT  TESTI- 
MONY. 

TIME: 

For  offer  to  continue  or  remain  open,  97 


INDEX. 


331 


References  are  to  sections. 


TIME    OF   COMPLETION     (see    also 

DAYS)  : 
May  be  changed  by  parol  agreement,  130 

TORTS  : 

Executor  not  liable  for  torts  of  person  he 
represents,  12 

TRADE  SECRETS  : 

Protection  of  to  firm,  219 

TREASURER  : 

Power  to  contract,  30,  32,  38 

TRIAL  COURT: 

Determines  what  practical  tests  may  be 
made,  293 

TRUTH : 

Of  statements  in  proposal,  oath  as  to, 
145,  150 

ULTRA  VIRES  : 

Contracts  by  corporation,  142 

UNAUTHORIZED  ACTS: 

Of  engineer,  owner's  liability  for,  37,  39 
Established  by  implication,   ratification, 
or  adoption,  34 

UNBALANCED    BID   (see    also    BIDS 
AND  BIDS  AND  BIDDERS)  : 

UNDERSTANDING . 

Manner  of  coming  to,  92 
Of  court,  expert  must  consider,  269 
UNDERTAKING  : 

As  regards  the  undertaking,  71-87 

Of  professional  man,  220-237 

Is  a  guarantee  of  ability  to  perform,  226- 

237 

UNRESTRICTED  BID  : 
To  furnish  materials,  184 
VALIDITY  OF  CONTRACT  : 

Determined  by  laws  of  what  place,  58 
VALUE : 

Of  competitive  plans  lost  by  express  com- 
pany, 215 
VERBAL  AGREEMENTS  : 

To  pay  the  debts  of  another,  110-111 
VERBAL  EXPLANATION  : 

Cannot  include  items  not  mentioned  in 

advertisement  for  proposal,  161 
VOID   AGREEMENTS,  see  also  CON- 
TRACTS, INFANTS,  IMBECILES,  LUNA- 
TICS, MARRIED  WOMEN,  PUBLIC  POL- 
ICY. 

WAGES  (see  also  EMPLOYEE)  : 

Minimum  price  for  labor  cannot  be  fixed 

in  advertisement  for  public  work,  157 
On  public  works   fixed  by  statute,  136, 

144 
Statute  requiring  wages  to  be  paid  when 

man  is  discharged,  144 
Payment  of  required  at  certain  intervals, 

144 


WAGE  S —  Con  tinned. 

Payment  of  wages  in  store-pay  forbid- 
den by  statute,  144 

Not  agreed  upon,  209 

Mistake  in  regard  to  wages  to  be  paid 
employee,  90 

WAIVER : 

Of  right  to  appeal  to  court,  86 

Of  right  to  discharge  employee,  207 

WANT  OF  CARE  AND  SKILL  : 

Judicial  officer  not  liable,  244-249 
Of  a  professional  man,  235 
Liable  to  employer  only,  242 

WAR: 

Effect  upon  parties  to  a  contract,  27 
A  disability  under  statute  of  limitations, 
115 

WARRANTY  : 

Cannot  be  considered  in  comparing  bids 

for  public  work  unless  it  was  invited, 

155 

Exacted  from  lowest  bidder,  157 
Of  accuracy  by  professional  man,  none 

implied,  229,  258 

WEIGHT  AND  VALUE  : 

Of  expert  testimony  for  the  jury  to  de- 
termine, 289 

WIFE,  see  HUSBAND  AND  WIFE. 

WITHDRAWAL  OF  BID : 

Before  and  after  it  is  accepted,  181,   183 

WITNESS  (see  also  EXPERT  WITNESS)  : 
Cannot  testify  as    to  meaning  of   con- 
tract, 126,  285 
Must  know  papers  are  correct  in  order  to 

testify  to  them,  278 

May  have  read  to  him  evidence  at  a  for- 
mer trial,  278 

WORDS  AND  PHRASES  : 

Meaning   explained   by  parol   evidence, 

122-126 

WORK  (see  also  ACCEPTANCE  ;  ENGINEER 
OR  ARCHITECT)  ; 

Contract     for,     not  within     statute    of 

frauds,  106 
WRITINGS  : 

Of  an  author,  copyright  in,  to  when  an 

employee,  219 

WRITTEN  CONTRACTS  (see  also  CON- 
TRACTS) : 

Certain  contracts  required  to  be  in  writ- 
ing by  statute  of  frauds,  98-111 

Embodiment  of  prior  parol  agreement, 
91,  97,  183 

Cannot  be  changed  by  parol  proof,  122- 

Modified  by  parol  agreements,  130-131 


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6 


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7 


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8 


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9 


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12 


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UNIVERSITY  OF  CALIFORNIA  LIBRARY 
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Return  to  desk  from  which  borrowed. 
This  book  is  DUE  on  the  last  date  stamped  below. 

,RV 


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UNIVERSITY  OF  CALIFORNIA  LIBRARY 


